Crime and Global Justice

The Dynamics of International Punishment

Daniele Archibugi, Alice Pease

• Publisher: Polity
• Year: 2018
• Print ISBN: 9781509512621, 9781509512614
• eBook ISBN: 9781509512652
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Over the last quarter of a century a new system of global criminal justice has emerged. But how successful has it been? Are we witnessing a new era of cosmopolitan justice or are the old principles of victors' justice still in play? In this book, Daniele Archibugi and Alice Pease offer a vibrant and thoughtful analysis of the successes and shortcomings of the global justice system from 1945 to the present day. Part I traces the evolution of this system and the cosmopolitan vision enshrined within it. Part II looks at how it has worked in practice, focusing on the trials of some of the world's most notorious war criminals, including Augusto Pinochet, Slobodan Miloševi?, Radovan Karadži?, Saddam Hussein and Omar al-Bashir, to assess the efficacy of the new dynamics of international punishment and the extent to which they can operate independently, without the interference of powerful governments and their representatives. Looking to the future, Part III asks how the system's failings can be addressed. What actions are required for cosmopolitan values to become increasingly embedded in the global justice system in years to come?

Part I
The Evolution and Purpose of International Criminal Justice

1
Towards a Global System of Criminal Justice?

The two cornerstones of the Western inter-state system

At the Congress of Vienna (1814–15) sovereigns founded and consolidated an informal society of states in which each member had equal rights and had its sovereignty recognised by the others. Sovereignty represented an entry ticket into international relations and guaranteed, at least formally, the uncontested authority of every state over its own territory and subjects. Mutual recognition of sovereignty between governments was an essential condition for each to gain the acceptance and veneration of its people. Sovereignty did not necessarily mean autonomy, and in fact many states, while sovereign from a legal viewpoint, had their freedom of manoeuvre constrained by outside interference. However, in spite of the often remarkable differences between theory and practice (well highlighted in Krasner, 1999), the traditional paradigm worked for over a century, up until the First World War (Kelsen, 1919).

The principle of sovereignty presupposed that sovereigns had no constraints internally (internal sovereignty) while they had to obey some shared rules in relationship with other states (external sovereignty). This was the basis for the creation of a number of rules in diplomacy, navigation, commerce and communications, which member states pledged to respect. The rules of the society of sovereign states were, however, peculiar. In general, rules are applied when there is an amicable relationship between members of a club, and in good times everybody is prepared to accept them. But sovereign states introduced rules that were also designed to regulate their violent conflicts. When cooperation fell by the wayside and conflicts erupted, there were still laws of war that each member was expected to respect. These rules also applied in the case of war crimes set out in the laws of war.

The model was founded on two cornerstones which had a specific relevance for criminal responsibility:

1. Each state could treat its subjects in the way it saw fit.
2. Not even in wars should a state judge agents of another state.

The first cornerstone therefore granted that every state had total control over its criminal justice system, and that the relationship between a state and its subjects could not be meddled with from the outside. Reciprocal non-interference ensured that individuals from a state, or those within its territory, were held to account by the courts of that same country, thus safeguarding the state’s authority over its citizens. If an indicted individual fled to another state, then the rules of the inter-state society allowed for the fugitive’s extradition to the country of origin, where he could be tried and punished. Of course, collaboration did not always take place. While some states were more inclined to cooperate, others preferred to compete, and a state could always consider granting asylum to an individual under indictment abroad. However, these were exceptions to the rule which held that a sovereign state had jurisdiction over crimes committed within its territory.

Recognising sovereignty meant, above all, that states refrained from interfering in how other governments treated their own subjects, even in cases where a despotic regime was systematically violating individual rights. Interference was only justified in situations that had serious international repercussions, for example when the brutality of a regime forced individuals to flee and take refuge in a neighbouring country. Only in these particular instances could a state step in and criticise the actions of its neighbour.

The society of states justified its existence to individuals and non-governmental organisations such as ethnic minorities, religious groups and rebels on the basis that it could provide internal stability and international peace, although these objectives were not often met. As far as internal stability was concerned, the implicit assumption was that if a government became too oppressive, then its subjects could rise up and overthrow it, replacing it with one that showed greater respect for individual rights. As for international peace, the presumption was that the principle of non-interference would contribute to strengthening inter-state collaboration and, in this way, avert war.

Unfortunately rivalry often trumped cooperation among states. The rivalries frequently escalated into war, during which the rules of good conduct agreed to by the society were put to the test. In fact, modern international law was born out of an attempt to create norms to which states could resort in moments of crisis, for example during armed conflict. These rules were frequently breached, however, and examples of states that have gone to war without breaking the rules of international law are few and far between. How were other states to react, therefore – both individually and collectively – when the rules of the society of states were violated?

For these situations the second cornerstone established clear guidelines: each state was responsible for prosecuting the actions of its own soldiers and agents. If they committed a war crime as defined by the society, then it was the responsibility of the state to which the culprits belonged to punish them, either through its ordinary legal system or in a military court. At the end of the war, victorious states were called upon to administer and sanction the defeated – for example, by annexing territories, demanding war reparations, seizing weapons, and even by establishing a new form of government. Under no circumstances could the victorious state try the enemy, be they soldiers, members of the government or, worse, the head of state himself.¹

This second cornerstone was related to the first in a very specific way. It was based on the premise that, from an international perspective, each government shared its responsibilities with those it governed. A state did not exercise jurisdiction over any individuals except its own, and could only impose sanctions on a collective entity. In short, enemies could be killed, ideally in battle, but they could not be put on trial. To initiate proceedings against the agents of another state was to break the fundamental rule of the society, in other words formal equality between states. Respect for this principle lay at the very heart of the society’s survival.

War crimes after the First World War

At the end of the First World War, the first cracks began to appear in the model that had prevailed for more than a century. When the victorious powers – France, Great Britain and Italy – demanded territorial concessions and reparation payments, they behaved in full accordance with the traditional legal paradigm: it was Germany as a whole, its state and people jointly liable, that had to pay for the damage caused. The tacit assumption was that, had the Allied powers been defeated, then they would have been the ones to foot the bill. Proof of this lay in the Franco-Prussian War of 1870–71, when a war-torn France had been forced not only to relinquish the territories of Alsace and Lorraine, but also to stomach the presence of German troops until the government had paid out the full indemnity of 5 billion francs, as agreed upon in the Treaty of Frankfurt. It is worth noting the terminology used in the Franco-Prussian treaty: indemnities, rather than reparations. France paid because of her defeat, not because a lost war was considered a wrongdoing in need of repair.

But at the close of the First World War, when it was Germany’s turn to be defeated, unprecedented demands were made. The victorious side was not content with obtaining merely territorial and material gains; they also sought moral reparations through judicial means. At the Conference of Paris, the victors suggested putting the Kaiser on trial. The charge was a curious one; the Kaiser was not accused of crimes against peace or of war crimes, but of committing a ‘supreme offence against international morality and the sanctity of treaties’ (cited by Kelsen, 1947: 167). The wording shows a preference for ethical, non-legal terms: ‘morality’ and ‘sanctity’. The Kaiser fled to Holland, however, to the relief of both the Germans and the victors. Holding an international trial would have drawn the Allies into a political quagmire: What type of tribunal would be used? On the basis of what norms? And if the Kaiser were tried, could the heads of states from the winning side not also one day find themselves in the dock?

With regard to other war criminals, as the conflict slowly faded into history, the victorious side, after heated discussions, became less intransigent in its demands and accepted that Germany try its own defendants. It was a more legitimate solution from an international viewpoint since it required the defeated state to conduct the punishment internally, without the involvement of the victors. After all, each state had its own military courts which could, in theory, prosecute war criminals – even if they were more inclined to try deserters than individuals guilty of crimes against the enemy.

The principle that a state could not try individuals of another state was thus safeguarded and the status quo maintained, although the German authorities did have to negotiate the list of defendants with the winning side. At the Leipzig War Crimes Trials in 1921, a reticent Germany brought only twelve low-ranking individuals to trial (Bass, 2000: Ch. 3; Kramer, 2006). The trials resulted in acquittals or light sentences, sparking conflicting reactions. Outside Germany, few were satisfied that only a handful of individuals, and not particularly significant ones, had been convicted. The perpetrators of the most horrific war crimes, such as the sinking of the hospital ship HMHS Llandovery Castle, were let off lightly with only a few years’ imprisonment. In Germany, on the other hand, the Leipzig Trials sparked strong but veiled resentment, utilised by the growing National Socialist movement.²

In terms of the architecture of the criminal system, the first cracks had begun to appear in the century-old model. The traditional legal paradigm nonetheless survived because war crimes were judged not by the enemy, but by the state to which the defendants belonged. From a political standpoint, the impression left in Germany was one of deep humiliation; no agent from the winning side was ever prosecuted, so Germany had to endure not only defeat in war but also the shame of a one-sided trial. The adverse political consequences were certainly greater than the beneficial legal results.

The creation of the League of Nations in 1920 gave the society of states a formal structure, complete with a statute, headquarters, and a Secretary-General. Its institution paved the way for the introduction of new norms and conventions which helped to strengthen the international system. It also led to the creation of an international court for the peaceful resolution of inter-state disputes. The principle of state sovereignty and non-interference were thus strengthened, with states formally integrated into a system of multilateral agreements.

In this period, designs were made for the future of international criminal justice to avoid the contradictions that had surfaced at the end of the First World War. A number of legal experts pushed for jurisdiction over individuals in the hope that the League of Nations would establish an international criminal tribunal. At the first International Congress of Penal Law, held in Brussels in 1926, a...

Table of contents

• Cover
• Table of Contents
• Title page
• Copyright page
• Tables and Figures
• Abbreviations and Acronyms
• Preface
• Acknowledgements
• Part I: The Evolution and Purpose of International Criminal Justice
• Part II: International Criminal Justice in Action
• Part III: The Future for Global Criminal Justice
• Epilogue
• Appendix: Films and Books about International Criminal Justice
• References
• Index
• End User License Agreement