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The European Journal of International Law Vol. 20 no. 4 © EJIL 2010; all rights reserved .......................................................................................... 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 un abashed 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 post­Westphalian pre­ no­­mena by neglecting issues which sumption of non­interference. fundamentally affect them. Highlight­ Briefly, it bears noting that Anderson’s ing counter­arguments 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 decision­making. 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 non­state actors and honour – lute non­derogable 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. IT­95­16­T, §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. IT­95­16­T,

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