The Rise of International Criminal Law: Intended and Unintended Consequences: a Downloaded from Reply to Ken Anderson†

...... The Rise of International Criminal Law: Intended and Unintended Consequences: A Downloaded from Reply to Ken Anderson†

Amrita Kapur* http://ejil.oxfordjournals.org

Professor Ken Anderson’s essay is ity as the foundational IHL principle in ‘an unabashed survey, in a short his argument in favour of reciprocity, space’ (at 332), which ‘surfs rather the right to judge conditional on inter than dives’ (at 358), in order to allow vention, and his claim of a trend away the reader to appreciate ‘just how from intervention. This article does not breathtakingly broad the horizon of comprehensively address the process or our rising system of international driving forces behind the humanization at MPI F Medizinische Forschung on April 23, 2010 criminal law turns out to be’ (at 358). of international law, which have pro The concomitant risk of this approach moted a trend towards intervention away is to mischaracterize the analysed phe from the historical post-Westphalian pre nomena by neglecting issues which sumption of non-interference. fundamentally affect them. Highlight Briefly, it bears noting that Anderson’s ing counter-arguments and consider depiction of passive neutrality presumes ing contradictory evidence, however that the ICC’s existence reduces the pres briefly, would have been one way to sure to intervene that would otherwise canvas, albeit not capture, the complex exist (at 334), when in fact international ity of the issues and avoid excluding politics is evolving from a position of a critical aspects of international legal complete lack of expectation, let alone developments. pressure, to intervene. Veto power dynam The humanization and individualiza ics responsible for the lack of intervention tion of international humanitarian law in Sudan today are equally to blame for (IHL) lie at the heart of the rise of inter past failures to intervene in situations of national criminal law (ICL). Anderson massive human rights abuses. The use conspicuously fails to consider human of the veto power predates the rise of ICL, has defined the Security Council since its † Anderson, ‘The Rise of International Criminal inception, and is likely to remain a reflec Law: Intended and Unintended Consequences’, tion of the political, military and economic 20 EJIL (2009) 331, http://ejil.oxfordjournals. interests that continue to dominate inter org/cgi/reprint/20/2/331. * Visiting Fellow, International Center of Transi national decision-making. The humani tional Justice. Email: [email protected]. zation of international law prompted a

EJIL (2009), Vol. 20 No. 4, 1031–1041 doi: 10.1093/ejil/chp113 1032 EJIL 20 (2009), 1031–1041 departure from neutrality as the de facto ity provides, ‘the failure of one side to position in international affairs towards a hold to the law releases the other side to position of condemnation of international respond in kind’ (at 340). crimes, which is still unfortunately cou IHL was developed to address, and is still pled with passivity in action. Anderson’s defined by, the enduring tension between legitimate concern as to whether time will reciprocity and humanity permeating all Downloaded from close this discrepancy may be answered decisions regarding the conduct of hostili to some extent through an analysis of ties. This dichotomy has shaped, and lim the development of individual criminal ited, the effectiveness of IHL: historically, responsibility in international law.1 there was no method of enforcement Section 1 of this reply describes the external to the parties4 and no incentive to

reasons why IHL preferences humanity comply with IHL apart from the interests http://ejil.oxfordjournals.org over reciprocity and the unacceptable of humanity. Moreover, parties to con risks of relying on alternative principles flicts and humanitarian NGOs continue to limit suffering in armed conflict. Sec to have diametrically opposed interests in tion 2 discusses neutrality as a preferred the instrumentalization of IHL. prerequisite for ‘the right to judge’ over It is immediately curious that in discuss being a ‘just’ party. ing the decline of reciprocity, Anderson draws on proportionality, deterrence and military necessity but does not refer to 1 Humanity in IHL humanity as a competing rationale dic at MPI F Medizinische Forschung on April 23, 2010 tating standards in armed conflict. His A Humanity versus Reciprocity conclusion, that ‘reciprocity still matters’ The principle of humanity, which recog (at 343), is made without any reference nizes that all people have equal dignity, to the importance, or even the relevance, is the cornerstone of contemporary IHL of the principle of humanity. And yet, customary and treaty law.2 The Inter ‘humanization’ has profoundly modi national Committee of the Red Cross fied states’ conduct during armed con (ICRC) defines humanity operationally flict. Various weapons inflicting unnec as the endeavour to ‘prevent and allevi essary suffering have been prohibited ate human suffering wherever it may be by treaty and customary law, and are found’, with the purposes of protecting no longer used; the wholesale bombing life and health, and ensuring respect for of cities is no longer a routine method of the human being.3 In contrast, reciproc attack; and members of armed forces are not killed when opportunity allows it, but instead are detained. This is not to say 1 See Kapur, ‘Humanity as the A and of Sover compliance is universal, but rather, that eignty: Four Replies to Anne Peters’, 20 EJIL despite increasing capacities to inflict (2009) 560. 2 See 1868 St Petersburg Declaration and Article suffering, the employment of weaponry, 3 Common to the four Geneva Conventions. tactics and strategies has nevertheless 3 ICRC, ‘The Fundamental Principles of the Red Cross and Red Crescent’, ICRC publication 1996 ref. 0513, http://www.icrc.org/Web/Eng/siteeng0. nsf/htmlall/p0513/$File/ICRC_002_0513. 4 See Posner, ‘A Theory of the Law of War’, 70 U PDF, 2. Chi L Rev (2003) 297. The Rise of International Criminal Law: A Reply to Ken Anderson 1033 been limited, and the pool of legitimate claim of reciprocity’s efficacy is whether targets also circumscribed. International reciprocity may more effectively curb criminal law has subsequently not only the extent of suffering caused by armed undermined reciprocity, but stressed its conflict. The three principal arguments irrelevance, ‘particularly in relation to invoked by Anderson in support of obligations found within international reciprocity – military necessity, influ Downloaded from humanitarian law which have an abso encing non-state actors and honour – lute non-derogable character’.5 also illustrate exactly why reciprocity is The concern with this approach is that inherently problematic as a principle to a ‘more humane war may be one that is limit suffering in conflict. more likely to occur and more likely to 6 persist once it begins’, whereas inhu B Military Necessity http://ejil.oxfordjournals.org mane conduct and weaponry may be The principle of military necessity justi effective deterrents to the very initiation fies reprisals, as the most common mani of war because of the potential level of festation of reciprocity, on the basis that predicted suffering. However, as Theo belligerents cannot be compelled to be dor Meron notes, there is no certainty disadvantaged in conflict. Anderson that ‘harsher laws of war would either foreshadows the first problem with this 7 discourage wars or shorten them’. system: it ‘only works if there is a com Reciprocity in practice belies equality mon understanding between the two at MPI F Medizinische Forschung on April 23, 2010 between states, because there is no legal sides as to the meaning communicated mechanism to check militarily advanced by proportionate and similar retalia states’ actions. Knowledge of an adver tion’ (at 341). That is, the effectiveness sary’s less advanced military capabilities of reprisals is predicated on ‘certainty or overstretched resources would allow about which actions rightly trigger a a stronger state to act without fear of reciprocal response and which responses reprisal and its armed forces members to are properly reciprocal rather than vio act with impunity, leading to violations lations themselves’.10 This is a danger 8 of IHL. ous assumption to rely on in times of The ‘humanization’ of international conflict: trust between the parties is legal obligations has eroded the role of seriously degraded;11 states are required reciprocity in the application of inter to determine lawfulness under extreme national humanitarian law over the time constraints, political pressure and 9 last century: the question underlying a military threat; then they are obliged to ensure the reprisal is proportional to the

5 Prosecutor v. Kupreskic, Case No. IT-95-16-T, §511. 10 D. Jinks, ‘Humanization and Individualization in 6 Posner, ‘Terrorism and the Laws of War, Chicago the Enforcement of International Humanitarian Journal of International Law 5 (2005), 426. Law’, IILJ International Legal Theory Colloquium 7 Meron, ‘The Humanization of Humanitarian Spring 2009: Virtues, Vices, Human Behavior and Law’, 94 AJIL (2000) 241. Democracy in International Law, http://www.iilj. 8 Posner, supra note 6, at 429. org/courses/documents/2009Colloquium.Sessi 9 Prosecutor v. Kupreskic, Case No. IT-95-16-T, on1.Jinks.pdf, 7. §518. 11 Ibid., at 2. 1034 EJIL 20 (2009), 1031–1041 initial breach and executed only after ing behaviour of non-state actors likely an unsatisfied demand for reparations to breach IHL, particularly in conflicts has been made.12 This ratcheting down involving identity politics. Humani renders any reprisal susceptible to vary zation has coincided with a dramatic ing interpretations of lawfulness: retalia reduction in inter-state conflict: today, tion is more likely to be interpreted as a the overwhelming majority of conflicts Downloaded from violation, which risks a reciprocal viola involve at least one non-state armed tion, and a downward ‘spiral into unmiti group, and often several; and intrastate gated barbarity’.13 conflict has been the most common form State military interests should not be of conflict since World War II.16 Accord assumed to align with the high stand ingly, the more pressing contemporary

ards of conduct prescribed by human challenge is securing compliance from http://ejil.oxfordjournals.org ity. Recent history confirms that liberal non-state actors not bound by the same democracies are equally capable of justi laws nor subject to the same pressures fying lowered standards and procedural as states. Anderson suggests that repris safeguards to achieve military ends14 in als on groups that consistently violate what has been termed the ‘cancerisation IHL ‘might have had an influence upon of the legal system’.15 For example, the USA Hamas and Hizbollah’s behaviour’ (at torture memos demonstrate executive 342) as opposed to a law of war that willingness to ignore a jus cogens norm rewards defending forces for recognizing prohibiting torture and accept unneces that war crimes against their own civil at MPI F Medizinische Forschung on April 23, 2010 sary suffering in the pursuit of military ians are the best strategy against a pow advantage. Military necessity eradicates erful but scrupulous enemy.17 baselines and misguidedly places faith in However, the efficacy of deterrence decision-makers who are institutionally depends on underlying presumptions predisposed to view adversaries’ actions about motivations, incentives, and the as unjustified – a combination condu likely response to reprisals, which do cive to reciprocal violations and blatantly not necessarily apply to non-state actors inadequate to safeguard humanity. whose motivations to participate in, and experiences of, conflict differ from states. C Non-state Actors Firstly, deterrence results from a rational The second problem with reciprocity calculation of prospective gains and relates to flawed assumptions in predict losses which often, but not always, cor responds with states’ decisions to initiate, continue or withdraw from an offensive 12 Hampson, ‘Belligerent Reprisals and the 1977 Protocols to the Geneva Conventions of 1949’, ICLQ 37 (1988), 823. 16 Uten Riks Department, Halvard Buhaug, Scott 13 Jinks, supra note 10, at 7. Gates, Håvard Hegre and Håvard Strand, Centre 14 International Commission of Jurists (ICJ), Eminent for the study of civil war, International Peace Jurists Panel, ‘Report on Terrorism, Counter- Research Institute, Oslo, Global Trends in Armed Terrorism and Human Rights: Assessing Damage, Conflict, http://www.regjeringen.no/nb/dep/ud Urging Action’ (2009), available at http://ejp. /kampanjer/refleks/innspill/engasjement/prio. icj.org/hearing2.php3?id_article=167&lang=en, html?id=492941 at 12. 17 Anderson, ‘Who owns the rule of war?’, The New 15 Ibid., at 157. York Times, 13 April 2003. The Rise of International Criminal Law: A Reply to Ken Anderson 1035 operation. Non-state groups may apply in which collective sanctions are likely to similar logic, but it is more likely that the reduce compliance with IHL: firstly, they non-state groups most likely to commit increase the entitativity of a group, which IHL violations will not. A brief survey of in turn increases individual social iden conflicts in Sri Lanka, Colombia, North tification with the group,20 particularly ern Ireland, Chechnya and the Middle- since this results in perceived victimiza Downloaded from East suggests that non-state causes often tion during conflict;21 and secondly, they go beyond rationally pursuing politi increase the glorification of the in-group, cal power and territorial autonomy to even if atrocities are committed, against encompass ethnic, religious and social members of an out-group.22 Jinks notes identity. 18 that ‘some evidence suggests that this

For example, the increased use by non- process is also strongly associated with http://ejil.oxfordjournals.org state groups of suicide bombers, particu dehumanization of the victims of in- larly women, to target civilians reflects group acts’.23 vastly different motives held both by the Jinks concludes, ‘[e]ven if inter- command structure, and by participat belligerent enforcement is the most ing individuals. The very endorsement of important axis along which to enforce tactics resulting in certain death reflects IHL and even if any such enforcement a cost–benefit analysis which views loss scheme requires some form of reciproc of human life as inevitable and inher ity, the humanization and individualiza ently proportionate to the ultimate goal. tion exhibited in the Geneva Conventions at MPI F Medizinische Forschung on April 23, 2010 The dramatic increase in female suicide better capture the advantages of this bombings has been variously attributed approach while minimizing the disadvan to revenge for lost family members, the tages’.24 Arguably, President Obama’s hope that the sacrifice will improve the recent decision to close Guantanamo Bay future, and protest against the loss of reinforces this logic: he characterizes tor family and the breakdown of society as a result of conflict. Reprisals are an ineffec tive deterrent to individuals who partici 20 See, e.g., Simona Sacchi, et al., ‘Perceiving One’s pate in armed conflict and violate IHL for Nation: Entitativity, Agency and Security in the International Area’, International Journal of Psy- personal reasons not captured in a con chology (2008): ‘Entitativity’ – an increasingly ventional cost–benefit analysis. well-studied psychological phenomenon – refers Secondly, reprisals are collective sanc to the extent to which a group is considered an tions to the extent that they target a actual entity with purpose and agency; see Jinks, supra note 10, at 8. command structure better positioned 21 See Munoz-Rojas and Fresard, ‘The Roots of to monitor and control the individ Behavior in War: Understanding and Prevent ual wrong-doer than the sanctioning ing IHL Violations’, 86 Int Rev Red Cross (2004) agent.19 Derek Jinks identifies two ways 189, http://www.icrc.org/Web/Eng/siteeng0.nsf /htmlall/p0854/$File/ICRC_002_0854.PDF 22 See, e.g., Castano, ‘On the Perils of Glorifying the Ingroup: Intergroup Violence, In-group Glorifi cation, and Moral Disengagement’, 2/1 Social 18 See Abrahms, ‘What Terrorists Really Want: & Personality Psychology Compass (2008) 154; Terrorist Motives and Counterterrorism Strat cited in Jinks, supra note 10, at 9. egy’, 32(4) International Security (2008), 78. 23 Ibid., at 9. 19 Jinks, supra note 10, at 8. 24 Ibid., at 14. 1036 EJIL 20 (2009), 1031–1041 ture techniques and Guantanamo Bay as psychological experiments and also recruitment tools for terrorists, as incen recognized by the ICRC. For example, tives to mistreat captured US soldiers, Zimbardo’s (1972) college prison experi and as rallying cries for US enemies.25 ment was infamously aborted after The radical change in policy reflects an students role-playing guards exhibited acknowledgement that violations of such cruelty that Zimbardo feared the Downloaded from international standards on a reciprocal students role-playing ‘prisoners’ would tu quoque basis cannot be justified either suffer mental and physical harm. The morally or practically. research challenged the ‘bad apple’ thesis, and has been invoked to explain the D Honour in Armed Conflict systemic nature of abuses inflicted by

In preference to a contractarian view of soldiers on enemy forces. http://ejil.oxfordjournals.org reciprocity, Anderson supports ‘recip Stanley Milgram’s (1974) renowned rocal obligations of soldiers’ relating to experiment produced equally disturbing their professional role and social rela results: in certain conditions, 65 per cent of tions based on the concept of honour (at participants delivered what they believed 341). Much more has been written about to be a 450-volt electric shock capable of honour than can be discussed here, but killing a person, in response to an order at the very least, it is clear that honour from someone in authority. A 2009 is not a sufficient ‘medium for enforcing modified replication found almost identi at MPI F Medizinische Forschung on April 23, 2010 decency on the battlefield’.26 cal obedience rates, while meeting more The sociological reality that exists in demanding contemporary ethical stand 28 opposition to honour, and permeates even ards and fully informing participants. professional armed forces, is the persist It seems that even ‘ordinary people, ent dehumanization of adversarial forces. simply doing their jobs, and without The atrocious abuses of Abu Ghraib and any particular hostility on their part, Guantanamo are not the result of a failed can become agents in a terrible destruc chain of command, or rogue individu tive process . . . even when the destruc als acting outside the acceptable code of tive effects of their work become patently conduct: they are symptoms of a ‘ration clear, and they are asked to carry out alized system of violence’.27 This phe actions incompatible with fundamental nomenon is not recent, nor is it exclusive standards of morality, relatively few peo to the US armed forces – it is a universal ple have the resources needed to resist 29 trend powerfully demonstrated in social authority’. A 2004 ICRC applied sociological study found: group membership inevit 25 Office of the Press Secretary, The White House, ably generates prejudices, simplifications Remarks by the President on National Security, Washington DC, 21 May 2009, http://www. whitehouse.gov/the_press_office/Remarks-by- the-President-On-National-Security-5-21-09/ 28 Burger, ‘Replicating Milgram: Would People Still 26 Anderson, ‘First in the Field’, 31 July 1998, Obey Today?’, American Psychologist (January Times Literary Supplement no. 4974 (1998), 4. 2009). 27 Hooks and Mosher, ‘Outrages against Personal 29 Milgram, ‘The Perils of Obedience’, Harper’s Dignity: Rationalizing Abuse and Torture in the Magazine, abridged and adapted from his Obedi- War on Terror’, 83 Social Forces (Jun., 2005) 5. ence to Authority: An Experimental View (1974). The Rise of International Criminal Law: A Reply to Ken Anderson 1037 and discrimination, all of which are exac The shortcomings of honour as an erbated when another group is declared effective code of conduct are most obvi to be the enemy; a cycle of vengeance ous in egregious acts which cannot be leads victimized combatants to commit justified on any grounds – not by mili IHL violations which initiates a down tary necessity, nor proportionality, nor ward spiral of violence;30 and willingness deterrence – such as rape and sexual Downloaded from to obey authority is further reinforced violence. Despite its long-standing sta by a military hierarchy which insti tus as a crime under customary inter tutionally supports demonization and national law and IHL,35 ‘in many con dehumanization of the enemy, resulting flicts, some soldiers, perpetrators, and in moral disengagement.31 The conclu world leaders viewed rape as a fringe 36

sion, that ‘the perception that there are benefit of war, an unspoken perk’: http://ejil.oxfordjournals.org legal norms is more effective than the before 1994, honour did not prevent acknowledgement of moral requirements the systemic and widespread com in keeping combatants out of the spiral of mission of crimes of rape and sexual violence’,32 further undermines the claim violence in armed conflict. Anderson that honour is an effective sociological refers to the reciprocal obligations of sol code of conduct. diers on the basis of honour, but surely Psychological and sociological re honour should also protect those who search comprehensively describes the are unable to defend themselves, and contours of these phenomena, and the not only those who have the capacity at MPI F Medizinische Forschung on April 23, 2010 inevitability of their occurrence with to reciprocate with dishonourable vio out legal codification and enforcement. lations? Yet honour comprehensively Violence is practised across time and failed to address the acceptance and context by one group against another to practice of sexual violence by members ‘dramatize the fact that the human com of regular armed forces in countless munity and its ties extend only to a cer conflicts, either through internal mili tain limit, and that persons outside are tary proceedings or through independ alien and subordinate’.33 Social norms ent inquiries or prosecutions. are easily distorted, and a ‘culture of the Conversely, in many conflicts, professional honor of soldiers, [which including the genocides in Bangla determines] what they are willing or not desh, Rwanda and Yugoslavia, ‘sexual willing to do on the battlefield’34 has an violence is seen as a crime of honor, extremely limited protective capacity. an act against the community not the physical integrity of the individual

30 The ICRC noted there is a high rate of ‘victimi zation’ (being victims of violence) among armed combatants; Munoz-Rojas and Fresard, supra note 21, at 7. 35 See e.g., 1863 Lieber Code, 1907 Hague Con 31 See ibid., at 18. vention No. IV concerning the Laws and Cus 32 Ibid., at 18. toms of War on Land. 33 Collins, ‘Three Faces of Cruelty: Towards a Com 36 D. J. Scheffer, Ambassador-at-Large for War parative Sociology of Violence’, 1 Theory and So- Crimes Issues Remarks, Fordham University New ciety (1974) 420. York, October 29, 1999, http://www.converge. 34 Anderson, supra note 26, at 8. org.nz/pma/arape.htm 1038 EJIL 20 (2009), 1031–1041 victim.’37 ‘[D]uring ethnic conflict, rape tom limited only by a mistaken presumed and sexual violence become strate rational appraisal of military acts and gies for . . . assaulting the honor of the material self-interest undertaken by both community’.38 Paradoxically a soldier’s sides. Reciprocity, military necessity and perceived ‘honour’ in armed conflict may honour appeal to military interests and depend on the active destruction of the cultures rather than interests of human Downloaded from ‘honour’ vested in women of the adver ity; each is more likely to exacerbate sarial party. human suffering. In contrast, through Only after intensive NGO lobbying at the humanization of international law the ad hoc tribunals were crimes of rape humanity establishes a necessary mini and sexual violence finally punished as mum standard, which has effectively 39

international crimes. Only through been used to cajole and pressure gov http://ejil.oxfordjournals.org ICL, were accepted norms challenged and ernments to improve military practices, standards of conduct modified to conform albeit imperfectly. to the requirements of humanity. Hon our, therefore, is an inadequate method in times of conflict of reducing suffering 2 The Value of Neutral and ensuring respect for human dignity. This is not to say that ICL has eliminated Justice crimes of sexual violence in armed con flict; but it has facilitated the identification A Neutrality Explains Why the at MPI F Medizinische Forschung on April 23, 2010 of such conduct as a crime, condemned ‘Right to Judge’ Should Not Flow its commission, and brought about con from Intervention victions and sentences for perpetrators. Anderson’s claim of an ‘earned right’ to Modifying international standards in turn administer justice is contrasted with an catalysed military forces to reform internal ideal of neutrality which in this context regulations and enforcement mecha implies restraint in actions that advan nisms. While we may not yet see the uni tage one side of the conflict over another. form application of such laudable reforms, He gives preference to victor’s justice their very existence is owed to legal norms over the ‘moral poverty of neutrality’, generated by international criminal law. claiming ‘it would have been morally Reciprocity would matter more if it monstrous to have entertained the idea guaranteed deterrence, and if its assump of turning [the Nazi leadership] over to tions about behaviour were sound. neutrals for trial’.40 Instead, it stimulates a race to the bot For the purposes of this discussion, criminal justice denotes the process of evaluating properly admitted evidence 37 R. Coomaraswamy, UN Special Rapporteur on Violence Against Women, Lecture delivered at the Third Minority Rights Lecture on 25 May 1999 at Hotel Intercontinental, Geneva, http:// www.sacw.net/Wmov/RCoomaraswamyOnHo 40 Anderson, ‘Humanitarian Inviolability in Crisis: nour.html The Meaning of Impartiality and Neutrality for 38 Ibid. U.N. and NGO Agencies Following the 2003– 39 Prosecutor v Akayesu, ICTR -96-4-T, Judgment, 2004 Afghanistan and Iraq Conflicts’, 17 Harv §5.5. Hum R J (2004) 66. The Rise of International Criminal Law: A Reply to Ken Anderson 1039 in accordance with criminal law princi lar crimes and determine appropriate ples and due process rights followed by sentences. It may be self-evident that a a determination of guilt and innocence; defendant is guilty of some crime/s, but the former attracting a punishment the identification of the specific crimes regarded by law and the community as justifying punishment is an independent proportional to the crime/s committed. outcome shaped by the nature and the Downloaded from Anderson’s moral conviction that ‘a trial quality of the trial process. If suspension . . . puts the symbolic seal of justice on of judgment is not fully effected then the what armies have rectified with force’ (at conclusion of any trial is pre-ordained. 337–338) displays a preoccupation with The Tokyo and Nuremburg trials were a ‘just’ outcome, at the expense of a just criticized as victor’s justice for precisely

process. Neutrality is conceived merely this reason – the trials were denuded of http://ejil.oxfordjournals.org as a path to impartiality, which equates justice as a process and the foundational to a ‘certain suspension of judgment presumption of innocence. In contrast, about guilt and innocence’,41 despite the ICC Trial Chamber’s decision to order being rooted in a particular political the release of the first ICC defendant, community. Thomas Lubanga Dyilo, reflects a funda However, the administration of jus mental shift in priorities from a ‘convic tice cannot be separate from justice as tion at all costs’, to procedural fairness at a concept or an outcome – to abandon all costs.42 justice in the process is to undermine the Anderson assumes that a fair trial, at MPI F Medizinische Forschung on April 23, 2010 justness of the outcome, both empirically both in substance and in appearance, is and normatively. The two distinct cate desired, despite the fact that he seems to gories considered by Anderson are firstly conceive of justice purely as an outcome a conventional armed conflict involving and not as a process. To this extent, states’ armed forces, which warrants vic there remains the question of whether tor’s justice and, secondly, crimes perpe the victor’s justice process is capable of trated by a government against civilians guaranteeing a just process. It seems warranting ‘humanitarian interven likely that the more horrendous the tion’, which the civilians should be enti crimes, the more outraged the commu tled to judge. Thus, the appropriate judge nity is, and the harder it is to genuinely appears not to be the victor, so much as suspend judgment. the wronged party. At a domestic level, particularly egreg Forcibly stopping the commission of ious crimes provoke vengeful commu crimes does not automatically generate nity responses often requiring a change the ability to fairly and accurately ascer in trial venue and the vetting of jurors tain individual responsibility for particu on the basis of negative pre-trial publicity

42 See ICC-01/04-01/06-1418, Trial Chamber I, Decision on the release of Thomas Lubanga Dyilo, 41 Note, however, that Anderson argues that the 02-7-2008, http://www.icc-cpi.int/NR/rdonlyres state should not be neutral or even impartial; /3A01D0E2-39A2-47A9-82EB-012725EBF91E ibid., at 67. /277765/ICC010401061418ENG.pdf 1040 EJIL 20 (2009), 1031–1041 to guarantee a fair trial. ‘Victors’ justice’ ill-equipped to address the totality of (which in this context is more appropri criminal conduct encompassed in the ately termed ‘victims’ justice’) does not commission of international crimes.43 limit this tendency to vengeance but For the victims and society at large, a gives it expression through proceedings range of other mechanisms better elicit designed to secure convictions and sen the truth, recognition for the wrong suf Downloaded from tences. If we are to be truly just, then fered and prevent recurrence, including we must be committed to punishing truth commissions, reparations, lustration defendants only for what they are guilty and memorialization. Criminal justice can for, and allow them the opportunity to only ever achieve a very narrow range prove their innocence. A ‘seal of justice’ of goals. These goals are important, and

that merely vindicates victors’ actions they should be pursued in conditions that http://ejil.oxfordjournals.org through a wholesale condemnation of maximize the justness of the process and the vanquished party’s wrongs, does not the likelihood of a just outcome. Trials provide meaningful truth or justice. should not, however, be perceived as the The question is one of scale and degree only mechanism through which the per of distance. International crimes are petration of international crimes can be inherently systematic and on a societal addressed. scale – the entire community suffers because of the scale and egregiousness B The Myth of the ‘Just’ Party at MPI F Medizinische Forschung on April 23, 2010 of the violations. When every member of According to Anderson, the right to the wronged community is likely to have administer justice is contingent on show been personally affected by the crimes, ing oneself to be ‘not the neutral, but the achieving the distance necessary to be just party or the party of the just party’ impartial may be impossible. There is an (at 338). There are two rejoinders to this essential and central role to be played by proposition: firstly, contemporary con those who have been wronged or have flicts render this analysis simplistic; and proven themselves the victors, but it is secondly, a just party in one scenario not limited to the courtroom. Anderson nevertheless sets a precedent for those is convinced that unless ‘an army sits who would seek to justify self-interested atop its vanquished enemy’ (at 337) the interventions on a ‘just’ basis for inter enormity of the crimes left unaddressed vention. by courts mocks justice. This is precisely The Ugandan, Colombian and Libe the point: the courtroom will always be rian situations are particularly promi an inappropriate and inadequate tool to nent examples where government reveal the enormity of the crimes. Jus claims of being the ‘just’ party vis-à-vis tice (meaning criminal justice) is not a their protective role of citizens simply process designed to produce the most do not mirror the facts. Victims’ stories comprehensive and accurate version of testify to a pattern of violence charac the wrongs committed – its purpose is to attribute responsibility to a particu lar individual for specifically articulated 43 P. van Zyl, ‘Justice without Punishment,’ in acts on the basis of admitted evidence. A. Sajo (ed.), Out of and Into Authoritarian Law Criminal justice systems are simply (2003) 53, at 58. The Rise of International Criminal Law: A Reply to Ken Anderson 1041 terized by crimes committed both by right? Either party as a determinative non-state armed groups upon civilians body is equally likely to denude the and government forces which commit process of integrity and justice and comparable crimes upon the population replace it with a mere symbolic seal on they are entrusted to protect. Interven punishment. tion on behalf of the civilians may con Humanity is a unifying principle which Downloaded from stitute being the party of a just party, but has catalysed improvements in three dif the corollary right is to judge all parties ferent areas of international law and guilty of crimes, which is not politically activity discussed by Professor Anderson. realistic or pragmatically feasible for The humanization of IHL and ICL has likely intervening parties. If the Ugan facilitated continuous, if not always con

dan government genuinely attempts to sistent, improvement in state conduct http://ejil.oxfordjournals.org bring LRA members to justice, reinte during hostilities which could not rea grate child soldiers, and provide repa sonably be expected of competing norms rations to victims, are they re-defined a such as reciprocity, military necessity or ‘just’ party, despite the crimes commit honour. Humanity has also driven the ted by government forces against the growing commitment to fairness to all civilian population? Transitional justice defendants, irrespective of scale of atroci literature and research indicate that the ties likely committed by them. Vesting process of accountability is more com the right to judge in neutral professionals plex, and better envisaged as a long- allows the accurate allocation of indi at MPI F Medizinische Forschung on April 23, 2010 term domestic project than victors’ vidual responsibility for international justice would suggest. crimes – it may not achieve perfect jus Further, the logic of earned justice dic tice, but it promotes fundamental prin tates that the ‘Coalition of the Willing’, as ciples of criminal justice better than the the victors, have earned the right to judge unachievable ‘impartiality’ of victor’s Saddam Hussein because their actions justice. Professor Anderson’s analysis of stopped him committing further crimes. IHL and ICL is thought provoking, but Yet Anderson argues the Iraqis have an appreciating the importance of humanity ‘overwhelmingly first claim on justice affords a more nuanced and constructive against Saddam’.44 Is it the victorious understanding of contemporary develop or the victimized who have earned the ments in international law.

44 Anderson, supra note 40, at 68.