International Judicial Institutions

The architecture of international justice at home and abroad

Richard J. Goldstone, Adam Smith

• Publisher: Routledge
• Year: 2015
• Print ISBN: 9781138799769
• eBook ISBN: 9781317623700
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

This fully-updated and much expanded second edition provides a much needed, short and accessible introduction to the current debates in international humanitarian law. Written by a former UN Chief Prosecutor and a leading international law expert, this book analyses the legal and political underpinnings of international judicial institutions, it provides the reader with an understanding of both the historical development of institutions directed towards international justice, as well as an overview of the differences and similarities between such organizations.

New to this edition:

• New updates on recently found records of the United Nations War Crimes Commission.
• Updates on the recent judicial decisions of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda
• Updates on the Special Tribunal For Lebanon
• A re-evaluation of the future of the International Criminal Court

International Judicial Institutions: Second Edition will be of great interest to students of International Politics, Criminology and Law.

1 International humanitarian law

• A short review

• What is it that international justice is enforcing?

• The laws of war

• Enter the courtroom

• What is the law of international humanitarian law?

• The controversy: is it law?

• Conclusion

A short review

The history of enforceable international humanitarian law (IHL) is both extensive and surprisingly brief. This dichotomy is illustrated by examining the conclusions of two leading thinkers on the topic writing more than five decades apart. Writing in 2003, Antonio Cassese argued that the concept is “relatively new,” pointing to its development in the years after the Second World War.¹ Yet, writing in 1947 Georg Schwarzenberger disagreed with the then-popular claim that post-Second World War enforcement of IHL was “of a totally unprecedented character”;² Schwarzenberger traced such instances of enforcement as far back as 1268 and found elements of what was claimed to be uniquely modern international justice throughout history, from antiquity to the present.³ The confusion is complete once one recognizes that both scholars are right.

It is a primary aim of this chapter to explain how both impressions of IHL are true, with each illuminating a different, equally important aspect of the topic.

What is it that international justice is enforcing?

In its least adorned guise, IHL is the branch of international criminal law concerned with international crimes committed in armed conflict and includes genocide and crimes against humanity, whether committed in times of war or in times of peace. It is also concerned with the trial and punishment of those who have committed such crimes. As such it would seem similar to criminal law that exists on the domestic plane in every state. However, to understand the differences between IHL and its domestic (or in the parlance of international lawyers “municipal”) cousins, one has to retreat to first principles. The domestic arena is the perfect place to do this.

When one breaks a domestic criminal law, what has that person actually done? Putting aside the specifics of the action, what the perpetrator has actually accomplished is a violation of a code or norm established by a sovereign state. That violation is the crime. There are usually two classes of victims to the crime: the individuals to whom the malfeasance was directed and the state itself whose hegemony, power, and sovereignty was illegitimately challenged by the violator’s conduct. In most states legal redress for crimes is similarly split: the individual citizen who has been affected can sue the violator for the harm suffered. This is usually dubbed a “civil” suit, with the result of such suits, if successful, “civil” penalties, the often-stated goal of which is to make the victims once again “whole.” However, the sovereign or state victim also has redress, and the legal action states take falls into the rubric of “crimes.” The sovereign files a “criminal” suit against the individual, the result of which is criminal penalties (such as incarceration or a fine), the goals of which can be motley and include having the violator “pay for” the harm done to the state or to deter or incapacitate the violator from committing further bad acts.

Transposing this system onto the international level, we encounter a pair of related issues that simultaneously illustrate how different IHL is from its closest analogs: domestic criminal law and non-criminal, international law. There are two questions in this regard: who “owns” international law? And who, or what, is the appropriate subject of such law? Regarding the first question, in the international system, as in the domestic, one can inquire that if an IHL violation (an international “crime”) has occurred, what has actually happened? And, as in the domestic realm, a violation reflects conduct against codes recognized by a “legitimate sovereign.” Yet, in a world of 193 states—literally, 193 “sovereigns”—and one in which international law has traditionally been governed by consent of states rather than fiat from above, who is the sovereign to whom unquestioned fealty is owed regarding IHL? Put more pointedly, whose will is actually being violated?

In many respects, it is the answer to this question that lends credence to those like Georg Schwarzenberger who see ancient remnants in modern IHL. The “sovereign” in international criminal law is not the leadership of any particular state, but rather some notion of a collective, or even universal will. In centuries past, this “will” was often equated with the divine,⁴ which in turn propagated the idea that certain acts (again, “crimes”) were simply beyond the pale. These acts, many of which became known to international lawyers as peremptory norms, or jus cogens, are “fundamental principles” of international law from which no derogation is ever permitted. That is, states not only do not need to consent to be bound by jus cogens, they cannot refuse to consent. Although the exact composition of the peremptory norm category remains in flux, a brief analysis of one of the oldest, and most universally agreed upon, members manifests the dual rationale behind the existence of jus cogens, and the consequent agreement of states to cede some aspects of their sovereignty both to each other and some higher goal. That international crime is piracy.

“Piracy” consists of committing various crimes—robbery, kidnapping, rape, etc.—at sea (although this definition has now been modernized to include such acts committed aboard other vessels, such as aircraft). It has long been the scourge of nations, at times devastating commerce and exploration. The means employed by pirates have often been horrifying, and the universal revulsion to their behavior has led to one of the more enduring identifiers of international crimes: such crimes are “heinous.” Indeed, the “heinousness” principle applied to piracy was used in the past, and continues to be employed today, to justify its classification as a peremptory norm.⁵ In short, to perpetrate the act of piracy is to be an enemy not just of the victim vessel or its occupants, but to become an “enemy of humanity” (hostis humani generis).

However, the other driver behind piracy’s placement on the list came from the geography and scope of the violation. More often than not, piracy takes place in international waters (or, now, international air space), outside the jurisdictional reach of states. Consequently, as no state exercises sovereignty over international waters and law derives from the notion of sovereignty, it could be argued that there was no proper law on the high seas. And, indeed, that is what pirates seem to take advantage of. Yet, well before any treaties on the subject clarified law in international waters, states implicitly and often explicitly agreed to exercise joint jurisdiction over the acts of pirates. All states had the right to punish pirates, and even the obligation to do so, for the sake of themselves and other members of the international community. In the language of international lawyers, assuming jurisdiction over crimes in which “all states can be held to have a legal interest,” can be viewed as an “obligation erga omnes. [‘in relation to everyone’].”⁶

This understanding of joint jurisdiction for crimes that were too big, too unwieldy, and too heinous for any single state to address reflected a subtle limitation to the notion of unquestioned state sovereignty. It was evidence of supra-national duties that states owed to the international community by simple virtue of their being in the community. Thus was set the precedent for finding the “sovereign” in international crimes. International crimes are not committed against any single sovereign, but rather against a combination of the joint will of members of the community of sovereign states.

This process of looking above the state to a multinational “sovereign” has taken time, and is related to the second difference mentioned above, that between IHL and international law writ large (non-criminal international law). Ironically, this second difference concerns not looking above the state, but rather below, down to the individual. Prosecuting for violations of IHL requires the assignment of individual criminal liability for violations against international norms. Although viewed through the prism of domestic criminal law it might seem odd if IHL did not focus on the individual, from the perspective of international law this “piercing the veil” of the state is a watershed. The state was always the subject of international law, not the individual. This can be illustrated by reference to the weight of treaties and other international agreements that impose state responsibilities—compared with the relative paucity of such treaties and agreements that focus on individual responsibilities—and by reference to the concept’s strong philosophical and historical base. Ever since its “birth” the state has enjoyed a hallowed place in international law. First on a de facto basis, and then enshrined de jure by the Treaty of Westphalia in 1648, the “state” was the sole, legitimate actor on the world stage. More importantly for IHL, there was a limit to what foreign states, let alone the amorphous “international community” could do to another sovereign state’s citizens. After all, citizens of states owed allegiance to their particular sovereigns, and its laws governed, not those of another state and certainly not those of some absent, ill-defined supranational entity.

This monolithic structure both imperiled individuals—as there was little, legally that could be done by the international community if a sovereign wished to abuse his people—and protected them—as, if their sovereign was untroubled by their behavior, there was little, legally that the international community could do to seek redress for crimes committed by individuals against citizens of other states. Today’s IHL fundamentally questions the inviolability of the state by placing individuals at its center, rather than states. It is in this sense, that Cassese and others, who speak of the “new,” post-Second World War IHL, are right. Assigning international responsibility to individuals and not their states (indeed, often implicitly or explicitly, exonerating the state itself for such acts), is a relatively recent phenomenon. Such a practice was considered after the First World War, and only began in earnest following the Second World War.⁷

Students of history may question this account, pointing to various instances in the more distant past where individuals seem to have been made the subject of international outrage regarding their actions. One of the more famous (in international law circles) of such cases occurred in the late fifteenth century when Charles the Bold, Duke of Burgundy, appointed Peter von Hagenbach governor of Breisach, a fortified town on the Upper Rhine. The citizens of Breisach had no desire to be ruled by the duke and caused trouble for Governor von Hagenbach. In response, the governor:

introduced a regime of arbitrariness, brutality and terror in order to reduce the population of Breisach to submission. Murder, rape, illegal taxation and the wanton confiscation of private property became generalized practices. All these violent acts were also committed against inhabitants of the neighboring territories.⁸

When he was finally deposed in 1474 after five years of terror, he was put on trial before a panel of 28 judges from a coalition of states and independent towns—it was undoubtedly a “real international court.”⁹ His charges were many, and it remains unclear under what body of law he was tried. However, the fact that an international diversity of 28 judges made up the tribunal suggests that it was by reference to norms above those of any single sovereign that served as the basis for the charges. Indeed, among other “malefacta,” von Hagenbach was charged with “trampl[ing] under foot the laws of God and man.”¹⁰ He was convicted and executed.

Although there are aspects of von Hagenbach’s trial that find echoes in modern IHL (not the least of which that the defendant refused to recognize the legality of the court, a charge regularly heard from the dock in modern international tribunals), there is an important distinction between the “individual” responsibility assessed on von Hagenbach, and that seen in today’s prosecutions for IHL violations. The difference reduces to the fact that although von Hagenbach was a man, he was not convicted solely as an individual, but rather as the representative of the state (ruled by the hated duke). He lived at the height of the era of absolute monarchy, l’état c’est moi. Thus, to a significant degree, it was the state that his prosecutor so despised, as it was in the state’s name that von Hagenbach had engaged in his violence.

The difference to today’s IHL is thus evident. While von Hagenbach may have been the legal personification of the Duke of Burgundy, Hermann Göring was not Germany, Slobodan Milosevic was not Serbia. Instead of stopping at the state, ever since the end of the Second World War, IHL goes through the state, prosecuting individuals for their actions. Under today’s international law, the state provides comparatively limited legal protection for its citizens, if their acts are “heinous” enough. This has required a radical reassessment of state sovereignty.

Thus, the story of IHL is the tale of changing notions of sovereignty, of where law comes from, who has the legitimate authority to enforce it (in legal terms, who has jurisdiction), and over whom it can be enforced. With this structure in mind we can turn to the content of the law. This part of the story takes place, at least in...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Abbreviations
• Introduction
• 1. International humanitarian law
• 2. The pre-dawn of international justice
• 3. International justice following the Second World War
• 4. The Cold War and the rise of domestic international justice
• 5. Post-Cold War justice
• 6. Post-ICC prosecutions
• 7. Conclusion
• Bibliography
• Index
• Routledge Global Institutions Series