Category Archives: BLOG

Commerce and Atrocity: The Elephant in the Room

David Bosco has written a wonderful book. Rough Justice reveals past events, distant and less so, that will be entirely new to even seasoned experts in international criminal justice. Where readers are familiar with the controversies he addresses, Rough Justice provides far greater detail than most were aware of. All of this information is masterfully put together in an elegant narrative, and couched within a conceptual framework that helps orient thinking about the relationship between the International Criminal Court (ICC) and Great Powers. The book will, no doubt, be read and reread by broad audiences as this ambitious experiment with supranational criminal justice unfolds over the coming decades.

At the same time, his book will likely serve as a convenient proxy for the criticisms of all those who hoped international criminal justice might be other than it is presently. In this vein, my reaction is more a complaint against the institution he describes than his treatment of it.

To my mind, there are all sorts of reasons to celebrate the arrival of the ICC, and much need to think creatively about strategies for overcoming its obvious shortcomings. I am particularly concerned by the double standards in enforcement Bosco seizes upon, and the injustice(s) these entail. Unlike other critics, I also believe that incremental acculturation is possible, whereby national courts come to take up the slack where the ICC’s power peters out. In other words, I believe that to some extent, critics of the ICC need to take Kathryn Sikkink’s “justice cascade” more seriously, and look to national systems to produce more of the distributive equality they seek. The ICC plays an important part in this cultural shift, such that its efficacy cannot be measured by referencing the impact or politics of its own trials alone. I am, for example, currently writing about the Blackwater trial that took place in Washington D.C. this past summer, in part because I intuit that, culturally speaking, this highly improbable case cannot be neatly separated from the massive rise of criminal accountability for wartime atrocity over the past two decades.

This said, the Blackwater trial does point to something highly regressive about the brand of international criminal justice on offer in the ICC’s own courtrooms. For all the reasons to celebrate the great leap forward in supranational criminal accountability over the past years, there is something strikingly backwards in all this progress too, which does not register in Bosco’s excellent book. The responsibility of businesspeople for atrocity was front and center at Nuremberg, but mysteriously, it has vanished since.

To begin, let me dispel the common misperception that companies are necessarily passive auxiliaries in bloodletting that is not of their making. In 1932, the chairman of the chemical company IG Farben allegedly paid a substantial bribe to have Hitler installed as Chancellor. Even the Nuremberg judgment itself indicates “in November 1932 a petition, signed by leading industrialists and financiers, had been presented to President Hindenburg, calling upon him to entrust the Chancellorship to Hitler.” Even before the end of the war, the Allies were adamant that if there were trials, international criminal responsibility would reach out and touch businesspeople, too: attempts at a second Nuremberg trial for just “industrialists” were only narrowly defeated. When these trials took place within zonal trials, a relatively large number of businesspeople were tried and convicted for pillaging natural resources and complicity in atrocities.

Why not now? There is a veritable flood of information about corporate implication in the very African atrocities the ICC is focused on. Security Council appointed panels of experts have documented connections between commercial actors and atrocities in modern African conflicts over which the ICC enjoys jurisdiction, NGOs like Global Witness and Human Rights Watch have mounted detailed investigations into legally comparable corporate war crimes in the very regions ICC defendants come from, Hollywood makes movies like “Blood Diamonds” and “Lord of War” to bring these realities to a wider public, all range of academics point to the perversity of the Resource Curse, the Alien Tort Statute cases against corporations nearly fall over entirely leaving quasi-total corporate impunity globally, the UN Special Representative on Business and Human Rights describes international criminal law as “[b]y far the most consequential legal development” in the field of business and human rights, but the ICC rests idle.

In fairness, Moreno-Ocampo did issue warnings about the serious possibility of these sorts of cases during his time as the ICC’s Prosecutor. In 2003, he reported that “there is general concern that the atrocities allegedly committed in [the DRC] may be fuelled by the exploitation of natural resources and the arms trade, which are enabled through the international banking system.” Later he reiterated that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” The statement then cautioned that “[t]he Office of the Prosecutor is establishing whether investigations and prosecutions on the financial side of the alleged atrocities are being carried out in the relevant countries.” In a conference I organized in The Hague in 2010 together with Larissa van den Herik and the Open Society Justice Initiative, Moreno-Ocampo again expressed a desire to move these cases forward.

The failure to make good on these promises, and their absence from Bosco’s otherwise wonderful text, leaves something of an elephant in the room.

One does not need to travel all the way to Afghanistan or Georgia to observe the political double standards Bosco sees animating the ICC’s operation in action. At the same time that the ICC has indicted Omar Al-Bashir and Jean-Pierre Bemba with pillaging other types of property from Sudan and the Central African Republic, it has turned a blind eye to the mountain of evidence that foreign companies were responsible for precisely the same war crime in the same region, with far worse consequences for local populations. In private conversations with ICC prosecutors, they either claim that they wish to focus on “just the basics” or that “these sorts of cases will be exceptionally difficult to prove.” With respect to the former, I am not convinced that the “basics” preclude addressing one of the means or motivations for terrible bloodshed. As for the latter, I have to doubt the veracity of the claim, partly because Dutch prosecutors, who have brought these cases, report that acquiring actionable evidence against businesses is often easier than in regular cases involving political or military leaders.

As I point out in a separate blog with the ICTJ today, trying these sorts of trials may actually make the Prosecutor’s explanation for her unique focus on Africa more plausible. Presently, the Court justifies its singular geographical focus by citing the number of victims involved in African conflicts. In philosophy-speak, however, the underlying argument is unsound—it assumes that only Africans are responsible for atrocities in Africa. That assumption is patently false. Aside from overlooking the tremendous variety of sources I reference above, it also plays down the long history of foreign corporations plundering African resources that dates to colonialism and the equally longstanding tradition of supplying weaponry to African conflicts without question. Even leaving these two sectors to a side momentarily, what of the history of offending by private military in Africa, à la Blackwater in Iraq more recently? If the prosecutor investigates foreign businesspeople implicated in African atrocities, she could correct for the fallacious assumption in her office’s poor explanation, distance her institution from the history of colonialism, and partially diffuse the African Union’s critique of the ICC without focusing on alternative geographies.

Her response would become: “when western nationals are implicated in atrocities of this magnitude in Africa, we hold them responsible, too.”

This brings us full circle, back to national trials. By even gesturing at the possibility of these sorts of cases, Bensouda could alert states and their publics to the need to prosecute their own businesspeople in national courts, in appropriate cases. In so doing, she would be nurturing the cultural shift I point to at the outset; gently instigating a kind of “justice cascade” for a set of actors that have proven spectacularly successful in insulating themselves from modern international criminal law. These are not small peripheral issues, they are often important factors in reproducing atrocity, have powerful symbolic resonance, and therefore go to the heart of international criminal justice’s legitimacy. Thus, I would have been all the more enamored with David Bosco’s excellent book if it had also announced the elephant in the room, observed the curiously regressive character of contemporary international criminal justice on this score, and contributed to shifting public opinion regarding commerce, atrocity and accountability.



The ICC’s Credibility Depends on Much More than Just Power Politics

David Tolbert has served as president of the International Center for Transitional Justice since 2010. Previously he served as registrar (assistant secretary-general) of the Special Tribunal for Lebanon and prior to that was assistant secretary-general and special expert to the United Nations secretary-general on United Nations Assistance to the Khmer Rouge Trials. From 2004 to 2008, Mr. Tolbert served as deputy chief prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY).

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is certainly an interesting and sometimes riveting read, even to someone who knows the story well. He clearly had considerable access to the principal actors, both internal and external, in the continuing drama around the International Criminal Court (ICC) as well as the trials and tribulations of the ICC’s early years.

As a matter of analysis, I find quite useful Bosco’s conceptual framework for examining the development of the ICC’s relationships with key state powers. In particular, his description of the United States’ up-and-down (or rather down-and-up) approach to the ICC fits well with his framework of, e.g., marginalization, control, acceptance. While Bosco devotes much of the book to the signaling between the ICC (primarily the ICC Prosecutor) and the United States, he does address the Court’s relationships with the other permanent members of the UN Security Council (P5) and other key states to good effect. Thus, on its own terms, the book contributes to our understanding of the relationships – missteps, mistakes and all – and the political dynamics between the Court (primarily the Prosecutor) and key states, mainly the US, and how current accommodations were reached.

While Bosco tells this story well, his framework and approach have their limits. The support of major powers for an international body, such as the ICC, particularly one that has the capability to touch state power so directly, is important perhaps even a sine qua non to the success of such a body. Nonetheless, for the ICC to make a longer-term difference, it will need to rely on the soft power of its own credibility, legitimacy and respect. These qualities go well beyond state diplomacy or being in the good graces of the great powers. In some (if not many) ways the involvement and association with, much less the accommodation of, great powers can have a counteractive effect, as the Court may be portrayed by its enemies as a tool of the great powers or, more generally, of the West (or the western powers). Even though it is a smear, the rhetoric that the Court is acting as a cat’s paw for western powers in the case of Kenya and beyond has clearly been effective. Thus, today the challenge facing the Court is less about acceptance by the great powers and more about finding ways to strengthen and build its credibility and legitimacy. Ultimately, a judicial institution must have credibility and legitimacy, or perhaps more colloquially – respect, to carry out its job effectively. This means not only being seen as independent of political control but also developing credibility with those affected by its judgments—above all, victims and affected communities—and international civil society, including scholars, academics and journalists.

The question then is how does the Court build the credibility and legitimacy it needs to do its job more effectively and make a difference in a world full of atrocities? In this respect, there ought to be both short- and long-term strategies. With regard to the latter, there are some pertinent examples of courts and tribunals that have recovered from initial difficulties and self-inflicted wounds and examples of some that arguably have gone the other way. The International Court of Justice lost considerable credibility, and even went some years without any cases, following its mishandling (to put it politely) of the Southwest Africa/Namibia cases; but it subsequently recovered and now has a full docket. On the national level, the US Supreme Court went badly off the rails a number of times with decisions such as the Dred Scott case and Plessy v. Ferguson but re-established its reputation in the area of civil rights with Brown v. Board of Education, among other notable cases. Arguably, the International Criminal Tribunal for the former Yugoslavia (ICTY) has gone in the opposite direction, establishing a significant amount of credibility with its handling of a number of earlier cases, including Tadić, only to run amok with its controversial and questionable decisions in Gotovina and Persić (in the latter with contradictory decisions from the ICTY Appeals Court on the same substantive issue).

If we examine these and other examples closely, it is clear that the qualities and abilities of the judges are key to establishing the credibility of a judicial institution. Indeed, one can argue that the great courts have competent and often great judges. Bosco himself alludes to the barriers to having a stronger group of judges when he notes ICC judges who came to office through apparent horse-trading, with limited (and in one case no) judicial qualifications or training; there are other cases of woefully underqualified judges being elected primarily because they come from important countries. Another area of contention that has hampered the ICC is procuring intelligence information. While these disputes are no doubt complex, they could have been addressed with a bit more judicial creativity (the ICTY’s Rule 70 approach comes to mind) in a manner that would contribute more strongly to the cause of justice.

Bosco notes a number of issues that plagued the Office of the Prosecutor. One was the propriety of using intermediaries in cases investigated in the Democratic Republic of the Congo, which led to serious questions about the collection of evidence. A second was the lack of a tracking team for locating fugitives, which had proved very useful at the ICTY. A third was not putting senior trial lawyers in charge of investigations (apparently this recently has changed), which at the ad hoc tribunals considerably strengthened investigations and indictments, an area where the ICC has struggled. These were all elements that either undermined confidence in the Office of the Prosecutor or, arguably, hampered its efficiency.

The Registry also has a number of practices and inefficiencies that are so widely recognized that the current and relatively new Registrar undertook a significant project, a ‘ReVision’ (of the Registry), the title of which speaks for itself.

One can identify other elements of ICC practices ripe for reform and change, as reflected in an extensive and probing recent report by a group of experts. There are no magic bullets, but steps can be taken to increase the credibility of the institution as whole.

So, while Bosco is right in asserting that the practice of high politics is an important and essential part of the ICC and that its leaders, particularly the Prosecutor, need to manage those relationships (particularly the signaling that goes back and forth), this is not enough for the Court to begin to fulfill its mandate and deliver on its promise. In my view, this is the key point: it is one thing to be credible to governments, but another to move beyond concerns about the P-5 and other important powers to demonstrate credibility to victims and affected communities and ultimately to build credibility among the international public.


The Sort of Justice the ICC Can and Cannot Deliver

Sarah Nouwen is a lecturer in law at the University of Cambridge, Deputy Director of the Lauterpacht Centre for International Law and fellow of Pembroke College. She is the author of Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press, 2013)

David Bosco’s Rough Justice: The International Criminal Court in a World of Power Politics is not just fluently written and rich in original interview materials. It also makes an important argument: the relationship between the International Criminal Court (ICC) and the world’s most powerful states has been one of mutual accommodation. In Bosco’s terminology, major powers may not have ‘marginalised’ the Court (or, in the case of the United States: it has shifted away from doing so), but they do to some extent ‘control’ the Court. They do so as members of the Security Council, shaping the Court’s docket by referring situations to the Court without providing additional funding, thereby absorbing the Court’s capacity for the situations they consider warranting investigations; through signalling their preferences and dislikes in informal meetings with ICC officials; and by providing information and other forms of assistance in situations where they are happy with ICC involvement, and withholding it where they are not. The ICC, for its part, does not take direct instructions from the major powers, but has internalised their wishes in its decision-making processes, particularly when deciding whether to open an investigation. It has not challenged the ways in which the Security Council has attempted to shape the Court’s jurisdiction, even where resolutions tried to exclude people from the Court’s personal jurisdiction, and it has not opened investigations in situations where the major powers would object. As a result of this mutual accommodation, the major powers have not merely tolerated the Court but, in some specific instances, even actively supported it.

The argument is important even if not surprising. To anyone who has observed the actions of the ICC over the past ten years it seems evident that the Office of the Prosecutor (OTP) has opened investigations only where the major powers have given a ‘no-objection’ indication (eight African states), while it has taken no action beyond a ‘preliminary examination’ where the major powers have great interests (for instance, Afghanistan, Colombia, Georgia, and now, Palestine). It also comes as no surprise to scholars participating in conferences during which diplomats representing the major powers (in fact, mostly the US) signal to ICC judges on the front row of the same audience how the ICC should act—posing rhetorical questions that require no answer from the academic panel, but follow-up in practice. It comes as no surprise to attendants of the annual Assembly of States Parties, where the US, not a state party, has a bigger representation than many a state party. And it comes as no surprise to those who frequent diplomatic receptions in The Hague, where ICC officials mingle freely with European and US representatives.

The argument is important because of the way in which Bosco makes it. First, it is common for this argument to be made by observers, only to be contested by Court officials who insist that the current distribution of ICC activities around the world is the result of the pure application of law. Having extensively interviewed ICC officials and major-power representatives, Bosco, however, deploys his interview material in such a way that it is almost as if the officials themselves are making his argument for him. In the interviews, some court officials seem to express a sense of pride in their political savviness and satisfaction with their ability to placate the United States. As Bosco also points out, they often stress, in the same breath, their legal independence as well as their political usefulness. In this sense, the book reads as an inadvertent ‘coming out’ of a court that reveals its political nature to a world that had known all along.

Secondly, Bosco’s book sheds light on the various ways in which this mutual accommodation takes place and shows its nuances. For instance, he distinguishes between the Prosecutor’s great-power sensitive attitude in opening investigations and the bolder approach in selecting cases within those situations. More nuances could be explored — for example, to what extent does his argument apply only to the OTP and to what extent also to the judges? And does his entire argument apply to all nine states that he considers major powers (the P5 + Japan, Germany, Brazil and India)? Has the Court been as deferential to, for instance, Brazil as to the US?

The implications of this important argument are mostly left to the reader to surmise. Bosco seems to end on both a realistic and an optimistic note. Realistic in the sense that he concludes that the Court is more likely to reflect the double standards of existing global governance structures than to alter them. Optimistic in that he argues that other international justice initiatives (among which the post-WWII tribunals and the courts for the former Yugoslavia and Rwanda) were similarly constrained, and yet were celebrated and served as inspiration for the ICC. He concludes that it would therefore ‘not be surprising if the world is willing to tolerate an international justice system constrained by major-power interests’.

There is reason to pause here. Were these tribunals truly celebrated, universally? One could argue that it was not their success, but their major shortcoming — selective justice — that served as inspiration for the creation of a permanent international criminal court with potentially global jurisdiction. Many non-major-power states signed up to the ICC precisely because of its promise of equality before the law: this international institution might be able to do what less powerful states could not do individually, namely hold the more powerful states, through their individuals, to account. Hence the insistence of many developing countries that the Court’s jurisdiction included the crime of aggression, a crime characteristically committed by the more powerful vis-à-vis the less powerful. The other side of Bosco’s argument that major powers control an international court is thus that smaller powers, in particular developing countries, have suffered yet another disillusionment in the emancipatory potential of international law (for other examples of international law’s boomeranging against those states taken by its promise of equality, see Sundhya Pahuja’s “Decolonising International Law”).

The implications of Bosco’s cogent argument are thus potentially much grimmer than he suggests, and many could be mentioned. But let’s focus here on two, namely one related to what the Court cannot do and one concerning what type of justice the ICC actually does. The ICC was established as a permanent international criminal court, complementary to national criminal jurisdictions, to investigate and prosecute international crimes within its jurisdiction with a view to addressing impunity. Pursuant to the complementarity principle, the Court is meant to address impunity in those instances where a case is not being, or has not been, genuinely investigated or prosecuted at the domestic level. One of the key causes of impunity at the domestic level is the pervasiveness of patronage systems, namely systems in which governments obtain loyalty from powerful actors in exchange for arms, government positions, cash, security, and indeed, impunity. In such scenarios, the state is unwilling or unable to call perpetrators to account, leading to an absence of genuine proceedings, and thus to admissibility of cases before the ICC. However, as Bosco’s argument suggests, the ICC itself is also embedded in a de facto patronage network: to some extent it accepts impunity with respect to powers on whose cooperation it depends in order to achieve accountability for others. Consequently, it is not just states but sometimes also the Court that is inactive. However, there is no ‘court of final resort’ to back up ‘the court of last resort’. Some types of impunity thus appear beyond the reach of the Rome Statute.

If justice is interpreted to mean criminal accountability, then the fact that some people are shielded from such justice does not mean that others should or would therefore go scot-free, too (see also the ICTY in Čelebići, para. 618). On that view of justice, a Court subjected to major-power political constraints seems better than no Court: every bit of accountability is welcome. However, as soon as one adopts a more holistic conception of justice, the continued selective operations of the Court are more problematic. For instance, if one considers equality before the law as an element of justice, then the current practice may do more harm than good: material inequality among states leads to de facto inequality among individuals. Moreover, by cloaking that inequality in legal procedures and arguing that all the Court does is follow the law, the Court is effectively affirming material inequality among states, and transforming it into a juridically relevant fact, thus justifying a departure from the principle of equality and legitimising and further entrenching inequality (see, more elaborately, here). That inequality does not merely dictate who ends up in the Court’s detention centre and who does not. It also determines who intervenes where in the world under the legitimising cloak of international criminal justice. Bosco shows how an initially anti-ICC US Government favoured the Court’s intervention in northern Uganda because it provided a hook for more western military involvement in Africa. And the ICC bestows such military operations with legitimacy, sometimes even explicitly. For instance, an OTP official has stated:

“We have our shopping list ready of requests for assistance from the American government … The American government first has to lead on one particular issue: the arrest of sought war criminals. … We need … the operational support of countries like the U.S., to the DRC, to Uganda, to the Central African Republic, to assist them in mounting an operation to arrest [LRA leader Joseph Kony]. They have the will – so it’s a totally legitimate operation, politically, legally – but they need this kind of assistance. And the U.S. has to be the leader.”

Thus, as Adam Branch has observed, ‘the doctrine that some justice is better than no justice can end up not only making justice conform unapologetically to power, but also making justice an unaccountable tool of further violence and injustice’.

Another type of justice negatively affected by the practice of selective criminal accountability is that of distributive justice. As Frédéric Mégret has argued, international criminal justice distributes blame. While in a cosmopolitan vision it does so only among bare individuals, it is in practice also seen to distribute stigma among the communities to whom these individuals belong. With its current focus, the ICC distributes all the blame to Africa. In an attempt to justify this focus, Court officials have painted Africa as the heart of darkness. The OTP, for instance, has stated:

“About targeting Africa. There are 14 accused, all of them are Africans. There are more than 5 million African victims displaced, more than 40.000 African victims killed, thousands of African victims raped. Hundreds of thousands of African children transformed into killers and rapists. 100% of the victims are Africans. 100% of the accused are African.”

By conjuring this bleak image, the OTP not only explicitly justifies its Africa focus. It also implicitly exonerates the rest of the world. The fact that all the attention of the world’s only permanent International Criminal Court is usurped by Africa invariably suggests that the world’s worst crimes and worst criminals reside in and stem from that continent. Crimes committed on other continents, and the role of other actors in creating the conditions for African crimes, thus become officially invisible as a result of the ICC’s averted eye. Selective justice as a result of mutual accommodation between the ICC and major powers thus has unjust distributive effects.

In sum, David Bosco’s argument is more important than his book suggests. For its implication is not merely the obvious one that the ICC cannot overcome all power politics—it is also that in its genuine pursuit to do some justice, it can end up doing some injustice, too.

The ICC Still Has a Chance

Aryeh Neier is president emeritus of the Open Society Foundations. He was president from 1993 to 2012. Before that, he served for 12 years as executive director of Human Rights Watch, of which he was a founder in 1978. He worked 15 years at the ACLU, including eight years as national executive director. He served as an adjunct professor of law at NYU for more than a dozen years, and has also taught at Georgetown University Law School and the University of Siena (Italy). Since 2012, he has served as Distinguished Visiting Professor at the Paris School of International Affairs of Sciences Po.

For more than three decades, since the transition from military rule to democratic government in Argentina in 1983, efforts to secure accountability for great crimes committed by public officials and leaders of guerrilla forces have been at the forefront of the concerns of the international human rights movement. The result has been establishment of so-called “truth commissions” in nearly fifty countries, mostly in Africa and Latin America, to disclose past human rights abuses and assess responsibility; vetting processes, sometimes called “lustration”, primarily in some former communist countries of Eastern Europe, to bar those implicated in past abuses from certain public positions; and, most notably, criminal trials in national courts, ad hoc international tribunals and in the permanent International Criminal Court. While all these efforts show mixed results, including a few that are regrettable, in combination they have produced a level of accountability for severe abuses of power that is unprecedented and that would have been previously unimaginable. Though leaders of the most powerful states of this era have so far not faced such proceedings, that may not continue indefinitely. Certainly, we have reached a point where high officials of less powerful states would be foolhardy to assume they can commit great crimes and enjoy impunity for the rest of their lives. It is no longer unusual for some whose crimes are long past to face a reckoning.

Consider Latin America. A former military dictator of Argentina, Jorge Videla, died in prison in 2013 while serving a life sentence. Another former military dictator of Argentina, Reynaldo Bignone, who is also serving a life sentence, will probably also die in prison. Augusto Pinochet, the former dictator of neighboring Chile, avoided such a fate because the courts of his country eventually decided when he was in his late 80s that he was too weak, physically and mentally, to be put on trial. The former military dictator of another country in the southern cone of Latin America, Juan Bordaberry, died in 2011 shortly after he was sentenced to prison for thirty years. A former President of Peru, Alberto Fujimori, is now in prison, serving a 25 year sentence. A former military dictator of Guatemala, Efrain Rios Montt, was sentenced in 2013 to thirty years in prison for crimes against humanity and fifty years for genocide before his sentence was overturned on difficult-to-understand procedural grounds by the country’s Constitutional Court. Though he is now 88 and in poor health, supposedly he is to be retried. Jean Claude “Baby Doc” Duvalier avoided trial for the crimes he committed when he was “President for Life” of Haiti when he died last October of a heart attack at age 63.

All these cases came before national courts. In the case of Pinochet, three countries, Spain, the United Kingdom and Chile, all had a part, and it was only because of the actions of the courts of the two European countries that the Chilean courts were ready to act. The Pinochet case in Chile also led to many prosecutions of lower level military officers for their crimes during the sixteen year dictatorship in that country. In Chile and several other Latin American countries, hundreds of military officers are now in prison, serving sentences or awaiting trial for crimes committed more than a quarter of a century ago.

The ad hoc international criminal tribunals are also responsible for a high level of accountability. This is particularly true for the tribunals for the former Yugoslavia, for Rwanda and for Sierra Leone; and even a few of those responsible for the atrocious crimes committed by the Khmer Rouge in the 1970s are now serving prison sentences. In general, the ad hoc international tribunals, like most national courts that have dealt with such matters, have conducted good quality trials. Principles of due process have been maintained. There have been significant acquittals as well as convictions.

The great disappointment for human rights advocates who have promoted accountability has been the performance up to now of the International Criminal Court. Since coming into existence twelve-and-a-half years ago, it has secured just two convictions, neither involving leaders with the highest level of responsibility for the crimes in their country. By now, it is necessary to raise questions about the ICC’s failure to achieve more. Is the concept of a criminal court with worldwide jurisdiction fundamentally flawed, or are their critical shortcomings in its design? Are there faults of judgment or execution by the court itself, and particularly by the Office of The Prosecutor, that account for its poor showing? Have major powers doomed the court to failure by unwillingness to support its efforts? Or is the ICC just off to a poor start, as was also the case – for a much shorter period – in the case of the ad hoc tribunals for ex-Yugoslavia and Rwanda?   Will the Court start demonstrating its worth and significance and, over time, fulfill the aspirations of those who sought its creation?

David Bosco does not try to answer all these questions, but his even-handed, well-researched and astute study provides us the information and analysis we need to think about these questions, debate them and formulate answers. Some, like me, who are eager to see the Court succeed, may be reluctant to speak bluntly about such matters. We may fear that expressing criticism will further weaken a body we should defend against those who want it to fail.

Putting aside that concern, my view is that the ICC’s failure to achieve more up to now reflects a combination of factors. At least one, I believe, is inherent in the concept. That is, it is impossible to imagine that the Court would enjoy independent capacity to enforce its actions. It may only secure the presence of defendants through their voluntary appearance or through assistance by those who control the territories where defendants are located. Such assistance will often have to be provided as a result of pressure from the major powers. Similarly, the ICC cannot by itself compel the presence of witnesses or the production of evidence.   It is also limited in its independent ability to send investigators to sites where crimes took place. The likely consequence is that, in the absence of substantial support from the major powers, the ICC will mainly be able to deal with crimes committed by leaders who have been defeated militarily or overthrown within their own countries. The successes of the ad hoc international tribunals are attributable in large part to cooperation they eventually obtained from major powers, such as those that deployed troops in Bosnia under NATO following the war there. So far as national prosecutions are concerned, it has only been after democratic governments came to power that former military dictators and their collaborators were made to face judgment.

A flaw in the design of the Court that is probably impossible to overcome and, therefore, might be regarded as a flaw in the concept, is that without the involvement of the UN Security Council, the ICC only has jurisdiction in the territory of the 122 states that are members of the Court or over the forces of member states. Many states where abuses are common have not become members and are unlikely to do so. In the absence of a Security Council resolution, the ICC cannot address the crimes committed in states such as Syria or North Korea. As such states may have protectors among the permanent members of the Council with veto power, the ICC is unable to address many ghastly crimes that should fall within its jurisdiction. Unfortunately, there seems no feasible way to address this shortcoming.

Faults of judgment or execution by the Court itself ought to be less difficult to overcome.   David Bosco’s study reinforces my view that the Court might have fared better up to now if the first prosecutor had been somewhat wiser and somewhat bolder in dealing with the major powers. Mr. Bosco points out that the work of the court “appeared to be occurring within a major-power comfort zone.” This seems a fair assessment of the first Prosecutor’s unwillingness to initiate prosecutions involving Afghanistan and Colombia and in the war between Russia and Georgia. In each of these cases, of course, there were good arguments against prosecutions. On balance, however, I think the ICC would have been strengthened and justice would have been served if prosecutions went forward and – this is crucial – if the Prosecutor also were able to personify justice in speaking publicly on behalf of such actions. The first prosecutor of the Tribunal for the Former Yugoslavia, Richard Goldstone, through his ability to embody justice, enabled that body to acquire the credibility that ultimately made it a success. I think the current ICC Prosecutor may demonstrate that she too has the capacity to play such a role.

Can the Court recover from what has already been a rather lengthy poor start? I think so. At this writing, at least two major issues involving the Court’s jurisdiction are in the news. One involves the resolution of the UN General Assembly calling on the Security Council to refer North Korea to the ICC. Will China and/or Russia veto a referral?   The other involves the effort by Palestine to become a member of the Court, and implicitly, to get the ICC to deal with such matters as the Israeli settlements and the conflict in Gaza.   Though it is not possible to foretell the outcome of these developments, their public significance shows that the world has not written off the ICC. Despite shortcomings and obstacles, it still has a chance to demonstrate that it can make a major contribution to the cause of accountability. Those of us who wish to advance that cause should help the ICC do its best and, at the same time, acknowledge that there are significant limits on what it may be able to accomplish.

The Inevitably Difficult Choices a Prosecutor Faces

Alex Whiting is a Professor of Practice at Harvard Law School focused on international and domestic criminal justice issues. From 2010-2013 he was Investigation Coordinator and then Prosecution Coordinator in the Office of the Prosecutor at the International Criminal Court. From 2002-2007 he served as a Trial Attorney and then Senior Trial Attorney at the ICTY.

David Bosco has written a terrific book on the first decade of the ICC, capturing how strategic considerations can help shape the decision-making of the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), as well as the actions of major states that interact with the Court. The book is carefully researched and beautifully written, and it recounts in often fine-grain detail some of the real-world considerations that touch the OTP on an almost daily basis (from my experience working there). It is a must-read for anyone trying to understand how the Court operates.

I offer a cautionary note about the takeaway from the book, a thought about what the book implicitly shows regarding the significance of the Court, and finally a suggestion about future research and thinking about the OTP.

First, in summarizing the book’s thesis it is important not to lose the nuance and complexity contained in the book. It would be a mistake to conclude that the book simply shows that the OTP seeks to avoid conflict with major powers, including the United States, and in this way essentially does the bidding of those powerful states. This reading might be tempting because it aligns with other (pernicious) narratives at play in discussions about the Court, in particular that the Court has “targeted” weak countries in Africa. But the truth is otherwise and more complex. The OTP does not quake at the prospect of incurring the hostility of major powers. The reality is that the Court faces critical reactions and pressures from political actors all the time and is quite used to it. As Bosco describes in the book, the ICC was born into an environment of open hostility by the United States, and in later years the Prosecutor pushed forward with an arrest warrant for Omar Al Bashir in Sudan and warrants for Muammar Gaddafi and two others in Libya while knowing that these steps were not necessarily welcome in Western capitals. The Prosecutor never adopted a strategy of great-power accommodation, and I think that those diplomats from major powers who engaged with the Prosecutor would be more surprised than anyone to hear him described as “accommodating.”

At the same time, there is no question that major powers and not-so-major powers can shape the environment in which the OTP works. And is that really a surprise? After all, it is a deliberate design feature of the Court that it has extremely limited powers, though often it is evaluated and judged as if it had the tools and authority of a domestic criminal justice system. Accordingly, the Court is completely dependent on cooperation from states, NGOs and other organizations to conduct its investigations and prosecutions. As Antonio Cassese wrote, “[i]nternational criminal courts remain entangled in and fettered by the intricacies of sovereignty.” This dependence can create a space for states to affect the work of the Court, and in some cases completely stymie its progress. That is true for big and small states. Bosco suggests that the Court has hesitated to plunge into an investigation in Afghanistan or Georgia because of the presence of the United States and Russia, respectively, but it is also the case that the strong resistance of Kenya and Sudan to ICC investigations there have also undermined the workings of the Court. When the ICC investigates in a country it will generally succeed only if it has cooperation from the country itself or from influential countries that can compel cooperation (as happened with the ICTY).

So when the OTP sets its priorities it must consider how best to use its limited resources in a world where (sadly) there are many places demanding its attention. One factor it will consider among many is the likelihood of success (defined as a thorough and credible investigation). Afghanistan and Georgia involve non-State Parties that are not likely to give their full cooperation to the Court, and certainly could not be expected to arrest suspects and deliver them to The Hague. The situation with Palestine is the same since Israel is not a State Party, and for that reason I have predicted that the Court will not move quickly to open a full investigation. When the Security Council referred Sudan and Libya to the ICC, the expectation was that these referrals would be backed by continued Security Council support as investigations and prosecutions progressed, but that has not turned out to be the case, which may give the Court pause when there are future referrals. At the same time, the prospects for success may affect the priorities of the Court but will not necessarily determine ultimate outcomes. The OTP has not dropped the preliminary examinations in Afghanistan and Georgia and it has opened one in Palestine. Ultimately, even if the prospects for success are low, the OTP may feel compelled to move forward on all of these cases. The OTP may be strategic and realistic, but it is also principled and is both motivated and constrained by the law contained in its Statute. In sum, therefore, major powers (as well as smaller powers) can affect the environment in which the Court operates and, in this way, can affect the work of the Court, but they do not therefore “control” the Court.

Second, I think Bosco’s book shows that despite the ICC’s limited powers and its ability to prosecute only a few cases in each situation, its influence remains significant. It is striking that countries care so much about what the Court does and that major powers, in particular the U.S., have chosen to engage constructively with the institution. Why? Why don’t they just ignore the Court? It is clear that the ICC has significance that far surpasses the few cases it is able to do. Even the possibility of an investigation, let alone an actual investigation, can have important repercussions. The Court’s focus on a particular situation has the power to frame the debate that can in turn shape the larger political and diplomatic discussion. For this reason, the Court matters, and major and less major powers will continue to pay attention to it. It is, and will continue to be, relevant.

Third, the book touches on but does not directly seek to resolve the normative question of whether the OTP should act strategically. I believe, and I am quoted in the book on this point, that it should, but I recognize that this can be controversial and it is certainly complicated. The Prosecutor has the obligation to investigate and prosecute cases over which she has jurisdiction under the Statute, but she is also building an institution with a limited number of tools. Should she consider the political environment in which she operates when applying the law? Should she think about Afghanistan and Georgia differently than other cases? When she starts an investigation and she has the choice of investigating just one side or of being shut out and foreclosed from investigating either side, what should she do? What compromises, if any, should the Prosecutor accept? When is half a loaf better than no loaf? How important is success, even if it is limited and incomplete? These are hard questions for which there are no easy answers. Institutional and legitimacy concerns often fall on both sides of the equation. If the Prosecutor acts too strategically, then she risks appearing unprincipled and undermining the legitimacy of the Court. Yet if she pays no heed to strategic considerations, she risks spending precious resources on efforts that will fail, exposing the fragility and weakness of the institution and also potentially undermining its legitimacy. Thus the Prosecutor is left to balance these two approaches in light of the particular factors in each case. Sometimes she’ll tilt more one way, sometimes the other, and sometimes a zig-zag will be required. There is no one approach that will work in all cases. Instead she is continually required to make difficult (and often legitimately debatable) judgment calls based on incomplete information and unpredictable and evolving circumstances. Is there a way to think about how the Prosecutor should think about these decisions? Could more thinking be done on how the Prosecutor should balance the different imperatives in each case? Bosco’s book opens this debate but does not attempt to resolve it.

Power Politics and its Global Shadows: From Margins to Center

Kamari Maxine Clarke is a Professor of Anthropology and Law. Her research explores issues related to social and political theory, legal pluralism, international law, and the interface between legal institutions and the related production of knowledge and power.  She is the author of over forty books and articles.  Her most recent book is entitled Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa (Cambridge University Press, 2009).  She is now in the process of completing a book on The African Union’s recent creation of a criminal chamber to address international crimes on the African continent.

Rough Justice: The International Criminal Court in a World of Power Politics is an eloquently articulated book about international criminal law and American unipolar power in the twenty-first century. Combining international relations (IR) scholarship with an unprecedented mapping of the conceptualization, growth, and crystallization of international criminal justice, author David Bosco tells a story about the play of power amongst “powerful states” as it relates to the formation and development of the International Criminal Court (ICC). By taking up the way that IR and legal scholars have conceptualized the workings of globally dominant state powers – especially in dealing with international organizations they do not formally control—the book explores the ways that major state powers have approached the ICC with either “marginalization” or “controlling” behavior. Moving beyond Robert Keohane’s classic theory (1984) that repeated interactions can produce rational cooperation, Bosco invokes the work of IR scholars, Barbara Koremenos, Charles Lipson and Duncan Snidal to argue that while the spectrum of state behavior – ranging from active marginalization, to control, and acceptance – can be deployed to manage the ICC, western states such as the United States have used forms of mutual accommodation to neutralize the threats of ICC encroachment. Bosco argues that major state powers have attempted to control the ICC (by engaging formal mechanisms such as the UN Security Council or informal diplomatic measures). In this way, the Court has become an instrument for “major powers” to respond to the instability of “weaker states”.

Yet, as much as Bosco’s conceptualizations of influence, decision-making, and the politics of state behavior are laudable, his trajectory reflects the workings of certain forms of power and does not fully take into consideration a large part of the story. By distinguishing between national states according to categories such as “strong” and “weak,” he sets himself up to miss nuances that are actually critical to how power and influence work in formal and informal settings. For example, once we recognize that the story of the origins of ICC justice is not simply one about the power of “strong” and “weak” states, we begin to understand international relations in more complex ways. We are called to make sense of the force of law, the play of sub- and supra-state power, and the relevance of political economy in the messy engagements between the Global North and the Global South.

Bosco begins his book with an inquiry into why and when so called “powerful” states joined or did not join the Rome treaty system. He spends very little time, despite the ICC’s Africa focus, exploring why those African states that eventually became the subjects of ICC investigations joined the treaty. Instead, he describes how political jockeying among Western states after Nuremberg and during and after the Cold War was key to contemporary state behavior among “strong states”. For Bosco, politics and control of the ICC is pivotal. He described crimes that were defined under the subject matter jurisdiction of the Court in the following way: “Efforts by some states to include crimes that had not been clearly defined internationally, including terrorism and drug trafficking, failed” (52). However, an investigation into why economic crimes failed and what that failure meant in relation to the de facto immunity of various Western states is critical to a full appreciation of the story. The identification of certain core crimes in the Rome Statute is consequential: whether the core crimes were spectacular and individuated crimes or economic crimes like drug trafficking is relevant to what ultimately comes under the Court’s jurisdiction. Rather than reading the construction of Rome Statute crimes as revealing broader political interests, however, Bosco instead takes up questions concerning the structure of the Court that are based on an acceptance that its subject matter jurisdiction occurs outside of the political. This assumption, that the making of the subject matter jurisdiction of the Court is separate from the play of politics, appears to establish his comfort with ICC crimes as political and individually driven rather than enabling crimes involving multiple economic interests, Western and nonwestern, rebels or democratically elected, and this orients his analysis of the brute forms of justice that are underway in the first decade of the ICC’s existence.

Because political economy and micro-politics of power are bracketed in Rough Justice, African resource-driven violence is relevant only insofar as it relates to Africans becoming subjects of the Court. What is missed – as a result – are the economic drivers of conflict and those Western interests that are being protected. Instead, the book asserts that the statute gave the Court jurisdiction over four crimes: aggression, genocide, war crimes, and crimes against humanity. These crimes are classified as those already elaborated in international law and therefore enjoying widespread acceptance. In the end, Bosco highlights the fundamentally “political” aspects of those crimes but stops short of analyzing the conditions of legal possibility by which African states became subjects of the ICC. Through his focus on the negotiations of major powers he forecloses the relevance of African states in ICC deliberations. Yet,it is the “powerful states” that shaped the conditions in which African states rather than European states became subjects of the Court, and in the shadows were a range of other crimes, enabling crimes, that Bosco dismisses without comment. And herein is the surprising absence in Rough Justice: the link between resource struggles that contributed to violence and the conditions of possibility in which enabling crimes fell outside of the Court’s orbit.

It is not possible to tell the story of the contemporary ICC and focus on the negotiations of Western powers without making connections between Western resource interests, plunder, and endemic violence. Despite the focus of Rough Justice on Western state power and its relationship with international institutions, the macro-story is actually one of continuities in economic disparities and the workings of broader structures of power. It is true that Northern states remained outside of the reach of the Court for all of the reasons that Bosco explains. However, such instances of inequality are not marginal to the play of international power. Rather, they are central to the way that African leaders or African rebel leaders and not US or French or British leaders became pivotal to the ICC’s exercise of personal jurisdiction. This analytic gap is compounded by the missing explanations of why a regional majority of ICC state parties joined the ICC in the first place. In fact, it was not the spirit of Nuremberg that inspired the moral impetus of African-ICC involvement. Rather, the Rwandan genocide and the euphoria of post-apartheid South Africa contributed to the mobilization of African interests in setting up a body that might deter such mass violence in the future. Further, many African states joined the ICC treaty system based on the formal and informal pressure of Western states, institutions, and civil society groups. Western state actors tied international treaty participation to monetary lending; signing treaties like the Rome Statute were used as statistical indicators for predicting various state economic outcomes. From state stability, state fragility, and the probability of violence, such measures helped to propel new rule-of-law institutions and contributed to the conditions under which submission to international treaties was initially welcomed by many states, as it allowed for the renewal of various aid package and loan renewals. With the shift to new linkage measures that connected demonstrations of good governance and the renewal of critically important loans (from the International Monetary Fund and the World Bank for example), signing international treaties became an indicator of good governance measures and was increasingly represented as state sanction of the new international order. These realities are critical to understanding the increasing significance of African states in the exercise of Rough Justice, and their absence from Bosco’s analysis is curious.

Africa enters Bosco’s analysis in relation to African violence seen as separate from Western interests. However, the violence in Africa pursued by the ICC, is not simply a narrative of violence begetting more violence. The discovery and extraction of natural resources like oil, diamonds, and gas has compounded situations of armed conflict across the African continent. Oil-rich Nigeria, for example, experienced ten successive military coups beginning in 1966, just a few years after independence and immediately following the discovery of its reserves. The struggle to control Nigeria’s government has always been in large part a struggle to control its massive resources. Minimal attention was given to developing state institutions. Instead, a highly centralized federal body with little to no accountability formed in its place. This is a pattern repeated across the continent. So it isn’t surprising that the race for political control in many African countries has led to electoral violence, and in some cases the development of rebel groups vying for political influence and the control of various extraction industries. The recent histories of the Democratic Republic of the Congo, Somalia, Liberia, Nigeria, Uganda, Sierra Leone, and Congo-Brazzaville all fit this trajectory – each with various international companies, rebel groups and governments deeply embattled in controlling resource extraction across Africa. In ICC ‘situation countries’, the reality is no different. From oil to coltan to various diamonds, gold and timber, the control of natural resources has been amongst the most important factors in Africa’s major conflicts. In the DRC, attempts by various actors to gain control over gold, coltan, and tin extractions such as tantalum and tungsten – used in commercial cellular phones, ipods, digital cameras and video recorders – continues to drive this complex conflict, drawing in neighboring states such as Rwanda that are backed by Western powers. Amongst the most central resource is oil; African states account for close to twelve percent of the world’s oil with large amounts being extracted from Nigeria, Cameroon, Equatorial Guinea and North Africa, as well as Sudan, the DRC and Chad – all regions that have recently experienced related conflict. Similarly, control of the Central African Republic and the DRC’s diamonds are also central to two of the ICC’s situation countries. Foreign multi-national corporations have been involved in extracting minerals in addition, to various African rebel groups engaged in fighting for control of those resources or selling them illegally. These realities demonstrate the relevance of highlighting economic crimes, such as pillage, alongside those seen as more spectacular such as genocide, crimes against humanity, war crimes and the crime of aggression. They also call into question the modes of liability for such violence that became framed through the individualization of criminal responsibility.

The second absence in Rough Justice is the relevance of the anti-ICC response by African states as a critical component of the play of power in the past six years of the Court’s existence. Since the warrants of arrests issued by President al-Bashir in Sudan and subsequent African leaders, as the basis for their growing opposition to ICC interventions, various African leaders began to criticize publically the ICC for its partiality and selectivity of African defendants as well as for the de facto immunity enjoyed by the West. Yet, Bosco’s timeline ends at the moment when a new development is underway in international relations jockeying – namely, the Africa-ICC push-back. Contrary to his 10-year analysis that focuses on the US and P5 power, developments have taken shape since 2012 by which the Court has started to take the objections of African states more seriously. Most notably, the Court’s second Prosecutor, Fatou Bensouda, as well as a large group of States Parties, have called for “a dialogue” with the AU and with individual African states.

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya in March 2013 has shifted the African landscape as it relates to the ICC. In the fall of 2013, the commencement of Ruto’s trial and Kenyatta’s pre-trial hearing generated such political turmoil that the Court and its States Parties were forced to respond. At the 2013 Assembly, States Parties ‘gave in’ to one of the AU’s demands by amending the Court’s rules on presence at trial for those accused before the Court who also fulfill extraordinary public duties at the highest national level–such as sitting Heads of State. As a result of perceptions of inequality, various African states criticized the ICC and called for amendments to the Rome Statute, insisting that sitting Heads of State should become immune from prosecution by the Court.

African leaders have also expedited the process of establishing the African Court of Justice and Human and People’s Rights (African Court). This involved extending the jurisdiction of the African Court to include a range of transnational crimes and introducing modes of liability that include individual and corporate liability. The result was the early formation of an ‘African Criminal Court’, which expands punishable crimes from crimes against humanity, war crimes, genocide, and the crime of aggression to those seen as relevant to Africa’s economic resource wars and illegal economies. The expansion of punishable crimes includes piracy, mercenarism, terrorism, corruption, illicit exploitation of natural resources, money laundering, the crime of unconstitutional change of government, and the trafficking of drugs, persons, and hazardous waste. These developments, as well as the reality of economic drivers of conflict, are central to the play of power in international institutions– not peripheral to it. They are an example of the workings of itinerant forms of power that prove difficult to trace within the “strong” state paradigm that Bosco’s analysis employs. To capture the complexity of the ICC’s work and the broader political economy in which it operates, we must carve out conceptual spaces for understanding human action and behavior that are not tied to rational cognitive processes leading to mutual accommodation, but that instead capture the inchoate and messy responses to international law. These responses reveal other assemblages that are as central to how “rough” justice can be when justice is understood through the conditions of possibility, the entanglements of interests, and the real effects of power.

On the Independence of International Prosecutors

Richard J. Goldstone is a former Justice of the Constitutional Court of South Africa. He was the first Prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.

David Bosco’s book Rough Justice contains an excellent survey of the first decade of the International Criminal Court (ICC) and, in particular, of the role played by its first Chief Prosecutor, Luis Moreno Ocampo. Ocampo’s sometimes active and sometimes passive role with regard to each of the nine situations presently before the Court are carefully and comprehensively described and analysed.

The central theme that runs throughout is the role of politics and especially major power politics with regard to the decisions taken by the prosecutor and its influence on the successes and failures of the Court. The development of that theme is set against the history of the international criminal tribunals that preceded the ICC.

In setting up the two UN ad hoc tribunals for the former Yugoslavia and Rwanda, the major Western powers, and especially the United States, played an indispensable role. As the cold war had ended and atrocities were again being perpetrated in Europe, in 1992 Russia and China were prepared to support an ad hoc war crimes tribunal under the auspices of the Security Council. When, soon after, Rwanda initiated a call for a similar tribunal in response to the genocide committed in its country in the middle of 1994, the Security Council could hardly refuse. Importantly, both of those tribunals were in no way inconsistent with the foreign policies of the P5 members of the Security Council.

The successes of the ad hoc tribunals and of the “hybrid” Special Court for Sierra Leone encouraged a number of less powerful nations, under the leadership of Canada, to call for a permanent international criminal court. They found it to be unacceptable that the final decision on whether to investigate atrocity crimes should be left to the Security Council subject to the veto power of the P5. The United States, China and Russia had some misgivings about such a court. They realised that it would operate outside their direct control. With the international courts established by the United Nations they were able to exercise a large measure of control over the jurisdiction, reach and powers of the court. They could not necessarily dictate policy to independent prosecutors and judges but they could certainly control their jurisdiction, resources and, to a large extent, the implementation of their orders and responses to their requests.

I feel more strongly than does Bosco about the extent to which international prosecutors have acted independently of the views of the major powers. He does refer to the actions of Ocampo in calling for an arrest warrant for President Omar al-Bashir of Sudan in the face of objections from all of the P5 members of the Security Council. However, he raises some doubts about the reasons for other decisions such as the decision by the ICTY prosecutor deciding not to investigate alleged NATO war crimes in Serbia during 2000; the ICTR prosecutor deciding not to investigate war crimes allegedly committed by the RPF during 1994 in Rwanda; and some of the investigations abandoned by Ocampo. I will respond briefly.

With regard to alleged war crimes committed by NATO during its bombing campaign in 2000, the Prosecutor (Carla del Ponte) accepted the advice given her by the ICTY’s chief international lawyer to the effect that the evidence available was not sufficient to justify a formal investigation. In particular he came to the conclusion that there was no basis upon which indictments could be issued against individual officials. The evidence was clear that the NATO leaders, political and military, were at pains to avoid, to the extent possible, targeting civilians. At worst, the allegations of civilian casualties were a consequence of negligence or errors of judgment. There was no evidence at all to suggest intentional targeting of civilians. In any event, war crimes that might nonetheless have been committed by NATO were substantially less grave than those that were being investigated by the ICTY against the Serb military. Serbia, under Slobodan Milosevic, had been conducting an egregious campaign of ethnic cleansing against the Albanian population of Kosovo. Even if, as Bosco, suggests, NATO was unwilling to furnish information to the prosecutor concerning its conduct, I would suggest that Del Ponte’s decision was a justifiable one.

The case of RPF crimes allegedly committed in Rwanda is a more complex and unhappy one. As Bosco points out, the allegations of crimes committed against civilians were serious and merited the attention of the prosecutor. While they were not committed with genocidal intent, some of them appear to have reached the level of crimes against humanity. At the time that the allegations emerged it must have been obvious to both Louise Arbour and Carla del Ponte that if an investigation had been launched, the Government of Rwanda would have severed its relationship with the ICTR. In that light, the choice would have been to proceed with the RPF investigation in the knowledge that the response from Rwanda would effectively have brought the life of the tribunal to a premature end. It could not have proceeded with trials without witnesses and evidence from Rwanda. The mission of the ICTR was to investigate the genocide committed in 1994. I would suggest that the prosecutor was justified in abandoning the RPF investigation in order to enable her to continue with the primary mission of the ICTR. That this was not stated openly is a matter for regret.

With regard to the record of the prosecutions initiated by Ocampo, Bosco’s conclusion reads as follows:

“There is no “smoking gun” evidence that the prosecutor has made these choices because of perceived major-power preferences or out of a desire to avoid entanglement with them. There are plausible nonpolitical arguments against investigations in each of these cases. Because the prosecutor has only infrequently explained a decision not to open an investigation, moreover, there is little documentary evidence to assess. But the overall pattern strongly suggests that the prosecutor’s office has, to this point, used its discretion on where to open investigations strategically.”

That prosecutors take into account the support that one or other investigation and prosecution will receive from relevant governments seems to me to be obvious. It would indeed be folly to leave that out of account. There are many issues and considerations that dictate whether this or that investigation is appropriate. They include the gravity of the alleged crimes, the evidence available or likely to become available, the official position of the alleged perpetrators and the time, effort and expense of the investigation and prosecution. There are others. One is certainly the prospect of cooperation from relevant governments. It is in this respect that the United States is of particular importance. The intelligence information that it furnished to the prosecutor of the ICTY is well known.

In conclusion, the success of any international court will depend upon its independence and especially from the great powers. It was primarily for that reason that the ICC was established. The selection of its judges and their actual and perceived independence are crucial and no less that of the prosecutor. It is in this context that the issues raised and objectively analysed by Bosco are so important.

Symposium: Whither the International Criminal Court?

The International Criminal Court (ICC) finds itself in an interesting predicament. On the one hand, it purports to function as an independent mechanism for holding those responsible for atrocities to account, regardless of their nationality, political allegiances, or geopolitical significance. On the other, the institution is embedded in international law first and foremost, which is itself part and parcel of an international legal order where sovereign equality is only formal.

David Bosco has written an excellent book on the ICC’s initial years navigating this tension. The substance of the book, called Rough Justice: The International Criminal Court in a World of Power Politics (OUP, 2014), is ably introduced by the various participants in this symposium, so I will resist the temptation to rehearse its full argument now. In short, Bosco assesses the ICC’s first years within a framework that questions the extent to which powerful states have marginalized, controlled or accepted the Court, pointing to an important degree of “mutual accommodation.”

There is much to commend about this excellent work, which will no doubt animate discussions about international criminal justice generally and the ICC specifically for some time to come. I hold my own applause for my substantive contribution later in the symposium, but I do want to mention at the outset that Bosco’s text has prompted me to add another line to my blogging manifesto, namely, a commitment to showcasing aesthetic excellence on this site. His book is beautifully written.

In terms of format, the symposium will involve a leading group of experts. In keeping with my commitment to promoting conversation between scholars, members of civil society and practitioners, I have invited a former Prosecutor of the ad hoc tribunals, others who have worked as senior practitioners, two very prominent members of civil society, and academics from leading institutions. The resulting group of experts come at these issues from different starting points and offer contrasting perspectives.

The result, I hope you’ll agree, is a truly fascinating set of reflections on this historic institution.

Life in the Global Public Domain: Response to Commentaries

John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. From 1997-2001 he served as the first-ever UN Assistant Secretary-General for Strategic Planning, where his responsibilities included establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. From 2005-2011 he was the Special Representative of the UN Secretary-General for Business and Human Rights, in which capacity he developed the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, entitled Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013), has been translated into Chinese, Japanese, Korean, Portuguese, and Spanish.

As the author of the United Nations Guiding Principles (GPs), I am honored that so distinguished a group of scholars has agreed to address them in this symposium. They do so not only from a policy perspective but also on deeper conceptual, legal and even philosophical grounds. I am particularly pleased that several of the commentators recognize that the heterodox nature of the GPs is necessitated by fundamental changes in the system of global governance and law-making of which human rights traditionalists may be unaware, tend to ignore or fail to understand.

Foundational Logics

Before responding to the commentaries, allow me to provide some of the intellectual and policy context within which the GPs were conceived, because their text alone cannot possibly convey it. In developing them over the course of a six year UN mandate, involving nearly fifty international consultations, extensive research and pilot projects, I had no interest in producing a piece of paper that would gather dust (or whatever electronic files gather) on library or scholars’ shelves. I strove to achieve what Professors Pauwelyn, Wessel and Wouters describe as “thick stakeholder consensus,” in contrast to the “thin state consent” that so often emerges from intergovernmental negotiations.[i] And I then hoped to leverage that consensus into “endorsement” by the UN Human Rights Council, adding to the GPs’ authoritative stature, helping to achieve their uptake by other international standard setting bodies, and embedding them in the global regulatory ecosystem for business and human rights.

In the event, the Council’s reception was unprecedented: never before had it endorsed a normative text that governments did not negotiate themselves. International uptake of key elements was swift: by the Organization for Economic Cooperation and Development, the European Union, the International Organization of Standardization, the International Finance Corporation, the Human Rights Commission of the Association of Southeast Asian Nations, the General Assembly of the Organization of American States, and the African Union, as well as by scores of individual states and businesses—even by the American and International Bar Associations. Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.

But here comes a confession: these things involved politics. I state it openly in my book reflecting on the experience: “Accordingly, the GPs needed to be carefully calibrated: pushing the envelope, but not out of reach.”[ii] For some critics, this is the GP’s original sin, staining them beyond absolution. Thankfully, most observers see it as precisely what enabled long-standing aspiration to be admitted into the realm of actual policy and practice. And when I presented the GPs to the Human Rights Council I stated that its endorsement would not end all business and human rights challenges; but I added that it would mark the end of the beginning, because for the first time there would be a commonly agreed-upon foundation on which to build.

Now on to loftier matters. I next want to elaborate briefly on the idea of “polycentric governance” which the GPs embody because it is not always fully understood but is critical to how the GPs are structured and intended to operate. It rests on the observation that corporate conduct at the global level today is shaped by three distinct governance systems. The first is the traditional system of public law and governance, domestic and international. Important as it is, by itself it has been unable to do all the heavy lifting on this and many other global policy challenges, ranging from poverty eradication to combating climate change. Indeed, formal state-based multilateralism has become harder, not easier in the past decade or so.[iii] The second is a system of civil governance involving stakeholders affected by business enterprises and employing various social compliance mechanisms, such as advocacy campaigns, law suits and other forms of pressure, but also partnering with companies to induce positive change. The third is governance by business enterprises of their own affairs, which internalizes elements of the other two. In the case of multinational corporations, corporate governance so conceived is a distinct transnational law-making system in its own right—the private law of contracts, with direct consequences that can equal and in many cases surpass the scale and effectiveness of public governance in particular issue areas.[iv] Thus, the intellectual and policy challenge as I saw it was to try and formulate an authoritative basis whereby the three forms of governance systems become better aligned in relation to business and human rights, compensate for one another’s shortcomings and begin to play mutually reinforcing roles, out of which cumulative change can evolve over time. From the outset I rejected the voluntary/mandatory dichotomy that had paralyzed creative thinking and policymaking for too long, and insisted that “a smart mix of measures” would be required to get from here to there.

To foster alignment among the three governance systems, the GPs deliberately draw on the different discourses and rationales that reflect the different social roles they play in regulating corporate conduct. Thus, for states the emphasis is on the legal obligations they have under the international human rights regime to protect against human rights abuses by third parties, including business, as well as policy rationales that are consistent with, and supportive of, meeting those obligations. For businesses, beyond compliance with legal obligations, the GPs focus on the need to manage the risk of involvement in human rights abuses, which requires that companies act with due diligence to avoid infringing on the rights of others and address harm where it does occur. For affected individuals and communities, the GPs stipulate ways for their further empowerment to realize their rights to remedy where negative impacts occur. This multi-perspectivalism too has caused puzzlement if not consternation among traditionalists.


Drawing these foundational elements together, the GPs rest on three distinct but what I hoped would become dynamically interrelated pillars:

  1. The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
  2. An independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved;
  3. Greater access by victims to effective remedy, judicial and non-judicial.

The thirty-one principles, each with commentary, elaborate the meaning of these foundational elements and their implications for law, policy, and practice. For its part, the Human Rights Council didn’t simply endorse a general idea; its endorsement covered the specific guidance that the GPs stipulate.

This approach may come more naturally to a political scientist than to human rights lawyers, ethical theorists or advocacy groups. In his commentary, John Tasioulas identifies several of what he calls “dogmas” that have limited past efforts to strengthen the international protection of human rights against corporate abuse: statism, legalism, a failure to recognize that human rights globally can only be secured through forms of polycentric governance, the growing fragmentation of international law and of the international political order—to which I would add the passionate belief on the part of some that certain human rights protections already “exist” in some ethereal sense, when the battle precisely is how to bring them into being and secure their effectiveness.[v]

Questions about Polycentric Governance

I now turn to the commentaries, taking them up thematically rather than by author. It comes as little surprise that the first concerns polycentric governance. To begin, Tasioulas raises what he calls a “vexing prospect” regarding the GPs corporate pillar. Let me explain. Under the GPs, companies have two types of requirements. One is to comply with all applicable laws. The other is to respect internationally recognized human rights in their own activities and through their business relationships, irrespective of what the host state does or does not do. Apart from legal requirements, the source of this independent corporate responsibility to respect is rooted in social norms and expectations. Tasioulas raises the concern that some societies are resigned to accepting lower expectations than others; he may well be right but we don’t need to debate the point here. More important for present purposes is that from it he infers the fear that “the idea of unitary human rights standards for the entire globe goes by the board.” This misses a critical element of the polycentric governance model.

A decade ago I published an academic article that introduced the concept of “the global public domain.” I described it as “an increasingly institutionalized transnational arena of discourse, contestation and action concerning the production of global public goods, involving private as well as public actors. It does not by itself determine global governance outcomes any more than its counterpart does at the domestic level. But it introduces opportunities for and constraints upon both global and national governance that did not exist in the past.”[vi] The GPs incorporate this understanding. Thus, the social norms and expectations regarding the corporate responsibility to respect are not simply local. The local increasingly is connected to and reinforced within the global public domain, thanks to civil society networks, social media, and the growing recognition by companies themselves in many sectors that enterprise-wide social risk management is in their own best interest.

When Oxfam America funds a community group in Cajamarca, Peru, which organizes protests against the local operation of Newmont Mining, headquartered in Denver, Colorado, and brings the community leader to Newmont’s annual shareholder meetings to make their case to the CEO and the press, those actions unfold in transnational space, not simply separate local spaces. Similarly, when Zambian or Andean communities lodge complaints against Chinese companies, based on social norms and expectations previously established with Western companies in the same or nearby locales, and the Chinese managers request guidance from Beijing, and Beijing’s guidance in turn references the GPs and the OECD Guidelines for Multinational Enterprises, those acts involve transnational space.[vii] The aggregation of such transnational spaces constitutes “the global public domain.”

Surya Deva also observes that “operations of business are no longer constrained by artificial territorial boundaries.” But in contrast to Tasioulas, his understanding of international law-making remains resolutely statist in character. Corporations are merely targets of regulation by the public governance system. In his scheme, they have no role in governance including as transnational law-makers, which is ironic because, at the same time, he insists that multinationals are so much more powerful than many states.

Questions about Scale of Treaty

The second major theme in the commentaries concerns the scope and scale of any international business and human rights treaty, a discussion renewed by the adoption by the Human Rights Council Resolution 26/9 in June 2014, which established an intergovernmental working group “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” A “treaty alliance” of some 600 NGOs have signed on in support.[viii]

Before responding to the commentaries on the matter of the proposed treaty, a few basic facts are in order. The resolution’s sponsors were Ecuador and South Africa, supported by Bolivia, Cuba and Venezuela. It did not garner a majority of votes in the Council, only a plurality. To obtain even a plurality, the sponsors had to include a footnote in the resolution excluding national firms from the treaty’s scope, notwithstanding its title.[ix] Virtually every major home country of multinationals either voted against the proposal or abstained. China was an exception, but its explanation of vote made it clear that its position hardly differed in substance from other home countries’.[x] Nor can it be said that the vote divided cleanly on North-South lines. For example, apart from the sponsors, all Latin American members of the Council, including Brazil and Mexico, abstained. Under the UN’s informal protocol, abstaining on a resolution pushed strongly by your neighbors can be taken to signify non-support. Finally, the proposal makes no effort to build on the GPs; in fact, the most ardent treaty supporters have done virtually nothing to act on the GPs within their own countries, and some have opposed references to the GPs in other international fora. Instead, the proposal essentially would start the process all over again with the aim of producing a single, overarching legal instrument that, like a silver bullet, promises the resolve business and human rights challenges once and for all.

The European Union and the United States indicated that they will not participate in the negotiations, although I suspect that eventually they will. NGO critics of their position attribute it to corporate influence, which of course cannot be discounted. But they fail to entertain the possibility that there is also something fundamentally flawed with the proposed approach, which on their own analysis has produced repeated failure in the past, and on which I elaborate below.[xi] Ecuador, the main force behind the proposal, estimates that negotiations could take a decade or more. Erika George, in the subtitle of her commentary, cleverly expresses the main challenge we now face as “making the most of the meantime.” But my best guess is that if the current parameters of the resolution and the intent of the treaty sponsors hold fast, one of two outcomes is likely to occur: either the process will drag on like the 1970s UN Code of Conduct for Multinational Corporations negotiations, which were finally abandoned in 1992; or Ecuador and its allies gather enough votes and ratifications from small states to produce an equivalent to the Migrant Workers Convention, which entered into force in 1990 but has not been ratified by a single migrant worker-receiving country—the equivalent in the present case being the major home countries of multinational corporations. By 2025 nearly half of the Global Fortune 500 firms are expected to be domiciled in emerging market countries, further narrowing the North-South divide that some have sought to resurrect in support of the current treaty initiative.[xii]

Now back to the commentaries. Tasioulas notes my long-standing objections to any attempt to shoehorn the entire complex of business and human rights issues into a single, overarching international legal instrument. The brief explanation is that the category of business and human rights involves an enormous range of problem diversity, legal and institutional variations, as well as conflicting interests across and even within states. Therefore, a general business and human rights treaty would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places. Jenny Martinez reaches much the same conclusion in her commentary. But Tasioulas as well as Surya Deva and Frederic Megret ask: why doesn’t this objection apply to the GPs? They are comprehensive, involving all states, all businesses and all internationally recognized rights. The answer is simple: because the GPs are not a treaty. Governments would never have endorsed them if they were. The GPs are a “soft law” instrument, which increasingly is how governments make initial moves into highly complex and conflicted issues. Even so, several generally human rights-friendly states needed considerable persuasion to accept certain foundational formulations in the GPs, not merely because they were protecting “their” corporations as might be assumed, but in defense of strongly held legal doctrines and to avoid setting precedents for other, unrelated, matters.[xiii]

The commentators also address my suggestion that, if treaty negotiations are to have any chance of success, they should focus on “carefully constructed precision tools” aimed at specific governance gaps. I first argued this case in a 2007 law journal article.[xiv] In the context of the current treaty debate, I have suggested that an obvious first instance would be corporate involvement in “gross abuses.”[xv] I did so because of the severity of the abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains considerable confusion about how they should be implemented in practice when it comes to legal persons (think Alien Tort Statute post-Kiobel); and because the knock-on effects for other aspects of the business and human rights agenda would be considerable, as was true of the ATS.

Surya Deva rejects these arguments. He believes that the first takes too constricted a view of the role of international law. I well understand that international law has expressive functions in addition to its regulative role. But there is no shortage of expressive international human rights law. The last thing victims need is a symbolic gesture that makes promises which cannot be kept. What is needed is laws that get implemented and make a difference on the ground. Deva also rejects the focus on gross abuses because it doesn’t cover enough human rights territory (it is “irrelevant whether human rights violations are regarded as ‘gross’ or not,” he states). But the real choice, as Jenny Martinez puts it bluntly in her commentary, is between a first step and no step at all. For my part, I find it unfathomable that in the current international political order states would agree to establish and enforce a single set of global standards for corporate conduct concerning every internationally recognized human right, ranging from extrajudicial killings to providing an adequate work-life balance. And I shudder to think of the damage that would be done to existing human rights standards in the process. At a deeper level, Deva would do well to engage the analysis of scholars such as John Douglas Bishop and scholar-practitioners like Philip Alston and José Alvarez, who have thought seriously about the societal risks of over-extending legal human rights obligations to corporations.[xvi] In short, like it or not, making choices about the substantive focus of a treaty is inevitable; the only question is who makes them, on what basis and with which consequences.

Tasioulas and James Stewart also raise questions about the “gross abuses” focus, but of a more technical nature. Both assume that addressing gross abuses would require states to establish a standard of corporate criminal liability as a matter of international or national law. This, Tasioulas fears, would “obscure the need for other sorts of responses, such as compensation.” But criminalization is not necessary. While the trend to recognize criminal liability of legal persons has been increasing, a number of countries still do not do so. Following the kinds of approaches adopted in the OECD and UN anti-bribery conventions, states would be free to consider appropriate forms of liability in line with the fundamental principles of their national legal systems, which could include civil or administrative liability, with corporate dissolution as the ultimate penalty. Compensation could also be made available, and the liability of legal persons could be without prejudice to criminal liability of natural persons who may have contributed to the corporation’s liability.

Moreover, while it is true that it remains unclear how far a treaty instrument on gross abuses would reach in addressing serious violations of social and economic rights, it certainly would encompass a number of grave harms in which business enterprises have been involved, including slavery and slavery-like practices, such as forced and bonded labor, both of which remain widespread.[xvii] In any case, bear in mind that the burden of my argument has been that international legal instruments in business and human rights should address specific governance gaps. Gross abuses are but one plausible instantiation. Erika George suggests additional ideas that are well worth considering.

Questions about Remedy

Understandably, the third theme that runs through the commentaries is the challenge of providing effective remedy for victims, particularly judicial remedy. The GPs, like every NGO report on the subject that I’ve ever read, are better at decrying inadequate access to judicial remedy than fixing it. GP 25 affirms that providing access to effective remedy is part and parcel of the state duty to protect against human rights abuses within their jurisdiction. The GPs go on to identify obstacles, and urge states to take steps to overcome them. Clearly this is not enough to ensure that it happens in practice, as I have readily acknowledged. What the treaty sponsors and advocates have in mind, however, is comprehensive forms of extraterritorial jurisdiction under international human rights law. Here too we enter very tricky terrain.

The Commentary to GP 2 summarizes, based on extensive research, what I believed to be international law and practice at the time of writing: “At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”[xviii] Being grounded in a multilateral agreement, the Commentary goes on to say, would provide one such jurisdictional basis. But this brings us right back to the scale of a treaty. Sit back for a moment and ponder the following two questions: for how many internationally recognized human rights do you believe states would endorse extraterritorial jurisdiction? Even more important for a symposium such as this, for how many rights should they do so? Does anyone expect, and should we want, extraterritorial jurisdiction to prevail across the entire range of internationally recognized rights? In my view, the answer to both questions is a resounding “no.”

That states would not agree requires little elaboration. While some UN human rights treaty bodies have urged home states of multinationals to provide greater extraterritorial protection against certain corporate-related human rights abuses, and research conducted under my mandate identified the grounds on which, and the ways in which, states have done so in a number of related policy domains, state conduct generally makes it clear that they do not regard this to be an acceptable means to address violations of the entire array of internationally recognized human rights. It makes little difference whether the states in question are located in the North, South, East, West or whatever azimuth one prefers to reference. Therefore, once again choices have to be made.

That it is an intrinsically bad idea undoubtedly will be more controversial for some. Deva ends his commentary by proposing a Business and Human Rights Declaration, similar to the Universal Declaration of Human Rights. He insists that it must “assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.” I have no principled objection to a Declaration. But if that same hierarchy were established in a legally binding international instrument and coupled with extraterritorial jurisdiction, it would utterly incapacitate national and local governments from conducting the often extensive number and variety of trade-offs that the very act of governance requires. Policy choices typically do not come neatly packaged, with human rights on one side and “other areas/instruments” on the other. They may involve conflicts between different human rights themselves. Moreover, “other areas/instruments” can equally implicate human rights, of different rights-holders, say, or over different temporal horizons. No single treaty could possibly resolve these complex interactions, so it would be left to each state to take its own approach to enforcement. But that would simply produce confusion and conflicting outcomes, and in some cases chaos, not uniform practices.

In sum, if we accept, as elementary logic requires, that not all internationally recognized human rights would or should trigger extraterritorial jurisdiction, then which ones? As a matter of record, extraterritorial jurisdiction in cases of gross abuses when committed by natural persons has greater international support than any other human rights-related abuse. In principle, this ought to make it easier to forge agreement for clarifying that the same prohibitions apply to legal persons, thus reinforcing the argument for a focus on corporate involvement in gross abuses.

At present, the most promising practical development on the legal remedy front comes as a result of a second resolution the Human Rights Council adopted in June 2014 (HRC 26/22), introduced by Norway and adopted by consensus (meaning that it required no vote). Among other things, it requests the Office of the High Commissioner for Human Rights to explore “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses” and, in collaboration with the expert working group that was established to succeed my mandate, to organize consultations among all relevant stakeholders—which will include national investigators and prosecutors who struggle with these issues in their daily work. This could inform the treaty process if the sponsors were willing to draw on it. If the treaty negotiations make no progress, then perhaps it could come to serve as a basis for a constructive alternative initiative.

Whatever one’s preferences may be regarding the specifics of a binding international legal instrument, everyone agrees that legal reform is difficult and takes time. But remedy is not limited to punishment. It may also include apologies, restitution, rehabilitation, financial or non-financial compensation, as well as prevention of harm through, for example, guarantees of non-repetition. Alternative dispute resolution techniques can play a critical role in this regard. Accordingly, the GPs also stressed the importance of promoting forms of non-judicial remedy. GP 31, the longest of the entire set, lays out effectiveness and legitimacy criteria to which such mechanisms must adhere.

Non-judicial mechanisms can be state-based, as in the case of administrative labor tribunals, or the National Contact Points under the OECD Guidelines, which included the GPs’ corporate responsibility to respect pillar in the Guidelines’ 2011 revision, and which have witnessed a spike in human rights-based complaints since. They can also involve grievance mechanisms that companies establish at local and/or corporate levels as many are doing, or collaboratively. Effective company-related grievance mechanisms can serve two important functions. First, they can make it possible for grievances to be addressed early and directly when and where they occur, thereby preventing harms from compounding and grievances from escalating. Second, they can serve as an early-warning system for companies, enabling them to adapt their practices accordingly. Many such operational level grievance procedures remain a work in progress that are still being tested (and in some cases contested by activist groups and plaintiffs lawyers). But for now they fall neatly into Erika George’s category of “making the most of the meantime.” And if they succeed, in the long run they will serve as a significant complement to whatever international legal regime may evolve, just as they do at the domestic level in even the most robust legal systems.

Concluding Thoughts

Much more could be said about the thoughtful commentaries this symposium has brought together, and the broader issues at stake. But in concluding I limit myself to two points. The first is to reiterate the important contributions of Amartya Sen to my understanding of human rights, which John Tasioulas notes in his commentary. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights.[xix] My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Second, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people—and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.


[i] Joost Pauwelyn, Ramsel A. Wessel and Jan Wouters, “The Stagnation of International Law,” Leuven Centre for Global Governance Studies, Working Paper No. 97, October 2012.

[ii] John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013).

[iii] Pauwelyn, Wessel and Wouters report that new multinational treaties have declined precipitously for more than a decade, and that not a single one was deposited with the UN in 2011.

[iv] The most creative work by lawyers on the subject of transnational law-making by multinational corporations with which I am familiar is by Larry Catá Backer, and Jean-Philippe Robé. It is too voluminous to even begin citing here, but see their respective websites:; and Both reference the work of the German sociologist of law Günther Teubner, whose writings on the fragmentation of international law and its implications for “legal regime collision” should be required reading for all students of human rights law. See, for example, Andreas Fischer-Lescano and Gűnther Teubner, “Regime Collision: The Vain Search for Legal Unity in the Fragmentation of International Law,” Michigan Journal of International Law, 25 (2003-2004).

[v] A leading exemplar of this last tendency is David Bilchitz, “A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles,” in Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013).

[vi] John Gerard Ruggie, “Reconstituting the Global Public Domain: Issues, Actors, and Processes,” European Journal of International Relations, 10(4): 499–531, citation on p. 519.

[vii] The first example is described in my book, Just Business, p. xli; also see Louis V. Galdieri, “Ruggie and the Red Priest,” available at For the second, see “Guidelines for Outbound Mining Investments,” produced by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, available at

[viii] See

[ix] The resolution is entitled “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.” But the oddly worded footnote defines “other business enterprises” as “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.”

[x] China’s delegate stated that their affirmative vote was based on the following “understanding”: that the issue of a business and human rights treaty is complex; that differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds, which need to be taken into account; and that it will be necessary, therefore, to carry out “detailed and in-depth” studies, and for the treaty process itself to be “gradual” and “inclusive.” See rights council&sort=date.

[xi] A recent NGO survey sums up the overall record since the 1970s: “All these efforts met with vigorous opposition from TNCs and their business associations, and they ultimately failed.” See “Corporate Influence on the Business and Human Rights Agenda of the United Nations,” Working paper issued by Misereor, Global Policy Forum, and Brot für die Welt,” June 2014, p. 5, available at

[xii] The estimate comes from McKinsey; see

[xiii] For example, the United States objected to my stipulation that the state duty to protect applies within a state’s jurisdiction; they insisted that it was limited to its territory—I suspect with Guantanamo in mind. The UK objected that it did not accept to the idea of a general state duty to protect, that this was strictly a treaty-specific obligation. Sweden objected to the inclusion of an independent corporate responsibility to respect human rights because it feared that it would detract from state obligations. And so it went, even with friendly states. I managed to satisfy the U.S. by changing the referent to “jurisdiction and/or territory.” The UK agreed that it would express its reservation in explaining its vote after the fact, which did not affect its endorsement. In the case of Sweden, thanks to personal relations with higher officials the objections of legal advisors were withdrawn. The UK subsequently released a letter sent to me by the Legal Advisor at the Foreign and Commonwealth Office, so I also released my response. They are available at; and

[xiv] John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law, 101 (October 2007).

[xv] See, for example, my blogs “A Business and Human Rights Treaty? International Legalization as Precision Tools,” available at; and “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” available at

[xvi] John Douglas Bishop, “The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations,” Business Ethics Quarterly, 22 (January 2012); Philip Alston, “The ‘Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Alston, ed., Non-State Actors and Human Rights (New York: Oxford University Press, 2005); and José E. Alvarez, “Are Corporations ‘Subjects’ of International Law,” available at

[xvii] Conceivably one might be able to make the case that systematic and widespread patterns of corporate-related involvement in what the ILO defines as the worst forms of child labor be included: “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”–en/index.htm

[xviii] On this and related points, also see John H. Knox, “The Ruggie Rules: Applying Human Rights Law to Corporations,” in Radu Mares, ed., The UN Guiding Principles on Business and Human Rights (Leiden: Martinus Nijhoff, 2012). Knox, a professor international law, currently serves as UN Independent Expert on Human Rights and the Environment.

[xix] See Amartya Sen, “Human Rights and the Limits of the Law,” Cardoso Law Review, 27 (No. 6, 2006); “Elements of a Theory of Human Rights,” Philosophy and Public Affairs, 32 (Autumn 2004); and The Idea of Justice (Cambridge: Harvard University Press, 2009).

Would a Treaty Be All It Is Made Up to Be?

Frédéric Mégret is an Associate Professor at the Faculty of Law, McGill University and the Canada Research Chair on the Law of Human Rights and Legal Pluralism

In moving towards the negotiation of a treaty on business and human rights, the international human rights movement is on familiar terrain. Indeed, legalization has represented a hallmark of the movement’s strategy ever since the adoption of the Universal Declaration of Human Rights. “From declarations to conventions” seems to be the natural direction that the project has been taking for decades. The International Covenants for example were a specific response to the perceived limitations of the UDHR. There is a time for politics, and there is a time for law. Human rights both domestically and internationally are fundamentally invested in the idea that the move from policy to binding standards is indispensable.

The move to a treaty on business and human rights should therefore not come as a surprise. No doubt it has some things to commend it. At the same time, doubts are already being voiced about whether it is a good idea. Some of these doubts may have to do with perceived hidden motivations for proposing a treaty, and the sort of substantive instrument that might result. For example, there is concern that the current treaty agenda reflects an anti-business bias, seeking to draw attention away from the responsibilities of the host state at the expense of the state of incorporation and transnational businesses themselves. Violations of human rights as a result of the activities of corporations result from a complex chain of causation that may include predatory corporate actors, but also irresponsible states on both ends (sending, receiving). The balance achieved in the Guiding Principles is a fragile one and there is a risk that it might be disrupted. The interstate environment in which treaties are negotiated might resurrect South-North antinomies that today are not the most helpful when it comes to the question of business and human rights. As Ruggie points out helpfully, whether a corporation is “transnational” or not is increasingly irrelevant. If nothing else, a human rights paradigm ought to inform a more cosmopolitan approach (as it has for most existing human rights treaties) one which is as much focused on the domestic as the transnational.

Nonetheless, it is far too early to anticipate what the eventual substance of a Treaty on business and human rights might be. Fears about its orientation are not really a reason for not having a treaty at all, only a reason to fight to have as good a treaty as possible. The real question at this stage is whether there is something inherently problematic about having a treaty as opposed to the Guiding Principles as they stand. And if one is to look for an inherent problem with having a treaty, it must be a problem with a treaty as a form. Although the Guiding Principles would presumably not be eliminated merely as a result of the emergence of a treaty, they would most likely be sidelined, or at least cease to reflect the global consensus alone, especially if the treaty was comprehensive. Here the question is whether, as in the traditional human rights vision, “Guiding Principles” were always a second best to a treaty, or whether there is something in the notion of Guiding Principles that is inherently appealing as a regulatory model when it comes to that particular topic (business and human rights) and in the current conditions (largely post-national and post-modern). I take John Ruggie’s Harvard piece as ambivalent on this very issue, at the same time not ruling out the need for a treaty yet cautiously trying to defend the sui generis character of the Guideline and the need to stay true to their “regulatory dynamics.” As I am in broad agreement with that cautious attitude, I want to suggest three ways in which we might see a comprehensive treaty as problematic.

A first concern might be what one might call the untranslatability of the Guiding Principles project into the language of a human rights treaty. As a human rights instrument, an international treaty on multinational corporations would be an almost unprecedented treaty focused not on proclaiming certain rights or protecting certain groups (as has traditionally been the case), but on imposing obligations upon a certain category of actors. It would therefore be more a treaty on obligations than on rights, even though the implementation of the obligations would be presumed to lead to the fulfillment of the rights. The combination of rights and duties is, admittedly, not unprecedented and, in fact, increasingly common. For example the Convention on the rights of persons with disabilities is a very mixed bag of rights proclamation and insistence on certain standards that states, local authorities and private actors ought to respect to make the rights of persons with disabilities a reality. However at stake is clearly a change in the style of human rights and it may be that something is lost by legalizing too many things, in ways that reflect international legislative inflation and perhaps a move away from the parsimony of rights. In other words, one might think there should be an international regulatory division of labour between human rights treaties (that remain at the level of quasi-constitutional principles) and implementing instruments (guidelines, corporate guides of conduct) that seek to chart the many ways in which treaties ought to be implemented.

A second perhaps more significant concern might be that the move to a treaty does too much of the promise of legal bindingness and therefore the prospect of enforceability. There is no doubt that currently there continues to exist huge gaps in the sort of accountability that victims of corporate rights violations can hope to obtain. The question, however, is whether this is because of the absence of a treaty. In practice, for example, it is not clear that simply because treaties are binding in Law means that they are regularly or systematically enforced. There is by now two decades of theoretical and empirical literature on whether treaties improve human rights compliance that is at best inconclusive. Note that the issue of whether human rights treaties induce compliance generally is distinct from whether they can command compliance in particular cases: the latter may be true even as the former is not, in the sense that one can evidently win an individual case under a treaty on the basis of its binding character even as that treaty is otherwise regularly ignored. In practice the existence of a treaty may or may not be the focus of strategies to promote human rights, but many such efforts do not particularly rely on its binding character (except rhetorically). In fact, as pointed out by Ruggie, the Guiding Principles have already become influential (with international institutions for example) largely despite not being binding. It is no small feat, in particular, that a non-binding international instrument has already translated into binding legislation, where many binding treaties are never incorporated into domestic law.

The lesson is that at least when it comes to that issue area, orienting institutional change may be more important than imposing it. At least as important to treaty compliance is the extent to which treaties set realistic standards or have a degree of legitimacy with the actors whose behaviour they claim to regulate. But herein lies the crux: bindingness, of course, is not everything. One might have standards that are scrupulously observed only because they are so low in the first place, something that would hardly count as a victory for human rights. In that sense human rights might be said to be at an implicit disadvantage in international normative competition since they start from a certain axiological high ground rather than simply some promise of rational-efficiency. At any rate, the binding character of a treaty might be obtained only at the cost of diluted standards, as states awaken to some of the legal ramifications of a treaty entering into force; or a treaty might be “strong” but fail to secure the participation of key states (as happened with the Convention on the Rights of Migrant Workers), a potentially disastrous result when it comes to transnational corporations. The move to a treaty, in other words, might destroy some of the constructive ambiguity upon which the Guiding Principles were based and signal, paradoxically, a decline in the implementation of the standards it champions.

Third, moving to the treaty form may effectively redefine the nature of the regulation involved, beyond the question of whether the resulting standards are binding or not. The “treatification” of the Guiding Principles might be seen as pushing in two, not necessarily compatible directions. On the one hand, the existence of a treaty directly regulating multinational corporations might be said to reinforce the status of such corporations as, henceforth, fully fledged subjects of international law and not merely entities producing their own form of endogenous regulation existing in a grey transnational normative zone. This strengthens the idea of corporations as human rights actors in their own right (even if substantively the treaty remains focused on their respecting rather than protecting human rights), in ways that can only challenge the state’s centrality. Given how vexed an issue the status of corporations as subjects of international law has been, a treaty – whatever else it does substantively – might at least clarify this issue. An alternative way of looking at it is that the adoption of a treaty would manifest a strong return of the “public” and an emphasis on the role of the state in regulating non-state actors. This at least is implicit in the idea that treaties’ source of authority is sovereign consent to them. Multinational corporations, even though they would be presumably regulated by the treaty and even though they would presumably lobby states both directly and indirectly, would not be a party to the treaty itself. Under this view, they would ultimately appear more as objects than subjects where one of the merits of the Guiding Principles was to put them at the centre of the regulatory effort that focused on them, thus presumably encouraging ownership and accountability.

In other words, the move to a treaty is a move to “normalize” the regulation of corporations within the vernacular of public international law and away from the sort of “private ordering” that has become a hallmark of the regulation of corporations today. It thus arguably does away with one of the central features of the Guiding Principles as a hybrid instrument at least partly “owned” by corporations. As such, one can wonder whether the move to a treaty does not manifest a form of failure of legal imagination. Is it so difficult to imagine a global instrument that would be binding under international law yet not restricted by nature to state membership?