Unity and Disunity in International Criminal Justice

Philosophical Foundations of International Criminal Law: Legally-Protected Interests Morten Bergsmo, Emiliano J. Buis and SONG Tianying (editors) E-Offprint: Rod Rastan, “Unity and Disunity in International Criminal Justice”, in Morten Bergsmo, Emiliano J. Buis and SONG Tianying (editors), Philosophical Foundations of International Criminal Law: Legally-Protected Interests, Torkel Opsahl Academic EPublisher, Brussels, 2022 (ISBNs: 978-82-8348-121-1 (print) and 978-82-8348122-8 (e-book)). This publication was first published on 16 December 2022. TOAEP reserves all rights pursuant to its general open-access copyright and licence policy which you find at https://toaep.org/copyright/. You may read, print or download this publication or any part of it, but you may not in any way charge for its use by others, directly or indirectly. You can not circulate the publication in any other cover and you must impose the same condition on any acquirer. The authoritative persistent URL of this publication is https://www.legal-tools.org/doc/205awh/. If you make the publication (or any part of it) available on the Internet by any other URL, please attribute the publication by letting the users know the authoritative URL. TOAEP (with its entire catalogue of publications) has been certified as a digital public good by the Digital Public Goods Alliance. © Torkel Opsahl Academic EPublisher (TOAEP), 2022 Front cover: View of internal courtyard of the orphanage Ospedale degli Innocenti in Florence. Established in 1419 by the local silk workers guild, it is an early example of secular resolve to elevate concern for the survival and security of vulnerable children, a value shared with the authorities of Florence and religious institutions. Facing serious environmental threats six centuries later, this anthology argues that the equally-fundamental values of humankind’s survival and unity should be given elevated recognition also by international criminal law. Back cover: Binding ancient steps on the flight of stairs leading up to the enclosed landing of the fifteenth century Convent of St. Francis in Fiesole outside Florence. By metaphor, this book discusses how we can bind a fractured humankind also with the hands of international criminal justice. All volumes in this Publication Series display a picture of publicly accessible ground on the back cover. 9 ______ Unity and Disunity in International Criminal Justice Rod Rastan * 9.1. Introduction The concept of ‘unity’ can be thought of at several levels. At its most basic level, the law embodies an existential drive for self-organising unity. 1 Concepts such as ‘unity’, ‘coherence’, ‘integration’ and ‘order’ have, as such, been discussed in juxtaposition to the central theme of the long-standing discourse on the fragmentation of international law. 2 The unity of interna* 1 2 Rod Rastan (Ph.D. (LSE); LL.M. (Nottm.)) is Legal Advisor, Office of the Prosecutor, International Criminal Court. The views expressed herein are solely the author’s and do not necessarily reflect those of the Office of the Prosecutor or the ICC. The author would like to thank Kai Ambos, Hans Bevers, Matthew Cross, Matilde Gawronski, Maja Groff, Paul Hughes, Claus Kreß, Nabil Rastani, Darryl Robinson, Julieta Solano and Matias Thomsen for their helpful comments on an earlier draft. See, for example, Mireille Delmas-Marty, Trois défis pour un droit mondial, Seuil, 1998, pp. 95, 104: “Le droit a horreur du multiple. Sa vocation c’est l’ordre unifié et hiérarchisé, unifié parce que hiérarchisé” (“The law shuns multiplicity. Its vocation is to a unified and hierarchical order, one that is unified precisely because it is hierarchical”); translated to English in Martti Koskenniemi and Päivi Leino, “Fragmentation of International Law? Postmodern Anxieties”, in Leiden Journal of International Law, 2002, vol. 15, no. 3, pp. 556–57. This well-known debate has looked at the proliferation and diversification of different branches of international law into increasingly specialised fields with their own supervisory structures, as well as efforts to identify principles, techniques and methods to give order to such pluralism; Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 13 April 2006, para. 8 (http://www.legal-tools. org/doc/dda184/); Report of the International Law Commission: Fifty-eighth session (1 May-9 June and 3 July-11 August 2006), UN Doc. A/61/10, 11 August 2006, para. 251(1) (http://www.legal-tools.org/doc/50b1e6/); Report of the International Law Commission: Sixty-eighth session (2 May-10 June and 4 July-12 August 2016), UN Doc. A/71/10, 12 August 2016, para. 84, recalling its earlier conclusions on fragmentation with regard to “the unity and coherence of international law, which is a single legal system and is not divided into separate branches, each with its own approach to sources” (http://www.legal-tools.org/doc/ fcd5db/). See, generally, Mario Prost, The Concept of Unity in Public International Law, Hart Publishing, 2012, pp. 10–12; Philippa Webb, International Judicial Integration and Fragmentation, Oxford University Press, 2013; Elies van Sliedregt and Sergey Vasiliev, “Pluralism: A New Framework for International Criminal Justice”, in Elies van Sliedregt Publication Series No. 36 (2022) – page 313 Philosophical Foundations of International Criminal Law: Legally-Protected Interests tional law in this context has focussed either on the constitutive rules and principles that regulate the creation and identification of other rules of international law, such as the rules on sources, foundational principles such as sovereign equality, pacta sunt servanda, or peremptory norms; or on the idea of a single core document, such as the UN Charter, setting out the constitutional order for the international community. 3 The important insights that have been gained from this debate have therefore primarily studied the implications of ‘unity’ in terms of the internal coherence of international law. The concept of ‘unity’ can also be thought of at the level of process, to describe mutualistic modes of social organisation that are not contestorientated, drawing insights from such diverse fields as feminism, systems theory, ecology and environmentalism, communication theory and alternative dispute resolution. 4 Such an approach, for example, might consider that the adversarialism of criminal trials, which prizes contests of advocacy and client interest, or the narrow lens of individual criminal liability which can obscure or distort our perception of wider societal contexts, render the criminal process ill-equipped to advance objectives like restoration and reconciliation, such that it fails to organise the structures of society in ways that advance unity. 5 3 4 5 and Sergey Vasiliev (eds.), Pluralism in International Criminal Law, Oxford University Press, 2014, pp. 3–38; Mads Tønnesson Andenæs and Eirik Bjørge (eds.), A Farewell to Fragmentation: Reassertion and Convergence in International Law, Cambridge University Press, 2015; Salim A. Nakhjavani and Melody Mirzaagha, “On ‘Unity’ as an Emerging Legal Interest in International Criminal Law”, in Morten Bergsmo, Emiliano J. Buis and SONG Tianying (eds.), Philosophical Foundations of International Criminal Law: LegallyProtected Interests, Torkel Opsahl Academic EPublisher, Brussels, 2022, Chapter 6. Wouter G. Werner, “The never-ending closure: constitutionalism and international law”, in Nicholas Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge University Press, 2007, pp. 350–52; Bardo Fassbender, “The United Nations Charter as Constitution of the International Community”, in Columbia Journal of Transnational Law, 1998, vol. 36, no. 3, pp. 529–619; Christian Tomuschat, “Obligations arising for states without or against their will”, in The Hague Academy of International Law, Recueil des Cours, 1993, vol. 241, pp. 195–374; Erika De Wet, “The International Constitutional Order”, in International and Comparative Law Quarterly, 2006, vol. 55, no. 1, pp. 51–53; Christopher Greenwood, “Unity and diversity in international law”, in Tønnesson Andenæs and Bjørge (eds.), 2015, supra note 2, pp. 37–55. See Michael Karlberg, Beyond the Culture of Contest: From Adversarialism to Mutualism in an Age of Interdependence, George Ronald, Oxford, 2004. Ibid., pp. 47–50. See, for example, Durkheim’s well-known distinction between restitutive, as opposed to retributive, law as a means to restore social relations, characteristic of a civili- Publication Series No. 36 (2022) – page 314 9. Unity and Disunity in International Criminal Justice The discussion in this chapter takes a different approach. Building on the discussion on foundational concepts and legally-protected interests developed in earlier chapters in the present volume and, in part, the second volume in the Philosophical Foundations of International Criminal Law series, it sets out to explore notions of ‘unity’/ʻdisunity’, not in terms of the law itself or of legal processes, but in terms of core concepts and values that appear to underpin international criminal justice. In this context, the chapter does not attempt to use the notion of legal good or protected legal interests in the usage developed along the lines of the Rechtsgut-concept. 6 Bearing in mind the editors’ encouragement to avoid watertight distinctions and rigid constraints, but rather to open up and stimulate thinking, the chapter seeks to explore notions of ‘unity’ more broadly insofar as they appear relevant for explaining a number of the underlying rationales for the existence and operation of international criminal justice and, specifically, of the International Criminal Court (‘ICC’ or ‘Court’). And while this volume focusses primarily on values, the chapter also touches upon the related pillar of concepts by treating ‘unity’ not only in terms of a core value underpinning or protected by international criminal justice, but also as a concept and a socio-political condition. The hope is that such an approach can help broaden our understanding of the notion of ‘unity’ in international criminal law (‘ICL’) discourse. Specifically, the three themes around which the chapter is organised inquire into: (i) why the ICC was created; (ii) what social function it serves; and (iii) how it can be effective. In doing so, the chapter touches on a number of prevalent discourses, such as on the concept of humanity as a single body politic, on global order and the idea of a universal society, and on questions of State compliance. It examines both where ‘unity’ anchors international criminal justice and where other notions operate in ways that appear, formally, at odds with ‘unity’. The chapter thereby rehearses a 6 sation based on organic, as opposed to mechanistic, solidarity; Émile Durkheim, The Division of Labor in Society, Steven Lukes ed., W.D. Halls trans., Free Press, 2014 (1893), pp. 89–96. See also David Baragwanath, Chapter 5 above. See, for example, Kai Ambos, “The Overall Function of International Criminal Law: Striking the Right Balance between the Rechtsgut and the Harm Principles – A Second Contribution Towards a Consistent Theory of ICL”, in Criminal Law and Philosophy, 2015, vol. 9, no. 2, pp. 301–29. On Rechtsgüter, see Chapter 4 above by Ioanna Anastasopoulou (‘Legal Goods in International Criminal Law’). Publication Series No. 36 (2022) – page 315 Philosophical Foundations of International Criminal Law: Legally-Protected Interests number of themes that apply to international law more generally, 7 but which are given particular focus by international criminal law in the light of its heightened institutionalised context: for if a recurrently identified weakness of international law is its polycentric, non-institutional framework, 8 international criminal law casts these debates in different (albeit not fundamentally altered) relief. 9.2. Foundational Concepts and Fundamental Values If we want to understand how and why international criminal justice functions the way it does, we can learn much from broader debates about society. These debates are relevant because law and legal institutions are social phenomena, helping to shape society, but also shaped by it. All of the themes discussed in this chapter rely on different ideas about the Court. Focussing on the core concepts and values underpinning international criminal justice can help bring clarity on why a permanent atrocity crimes court has been created, what function it is supposed (and not supposed) to serve, and how it interacts with other social actors in order to achieve its intended outcomes. This can in turn clarify the prerequisites necessary for those outcomes to occur. By contrast, uncertainty or contestation over why the Court exists and what purpose it serves will tend to stifle its operability and negatively influence the overall cogency, coherence and enforcement of international criminal justice. Foundational concepts and fundamental values provide the bedrock upon which social systems and structures can be built: they help explain our underlying assumptions of who we are and our relationship with society. They are at once explanatory, aspirational and transformative. Reflection on these underlying assumptions might validate existing beliefs, theo7 8 See, for example, James Crawford, Chance, Order, Change: The Course of International Law, Martinus Nijhoff Publishers, 2014; Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, Cambridge University Press, 2001; Martti Koskenniemi, “International law in the world of ideas”, in James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law, Cambridge University Press, 2012, pp. 47–63; Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking, Oxford University Press, 2016. Crawford, 2014, pp. 86–114, see supra note 7. As discussed below, this difference is only of degree since the overall design of the Rome Statute embodies polycentrism both in its priority for the assertion of national criminal jurisdiction and in the co-operation and enforcement apparatus necessary to give effect to the ICC’s exercise of jurisdiction. See Rome Statute of the International Criminal Court, 17 July 1998, (‘ICC Statute’) (http://www.legal-tools.org/ doc/7b9af9/). Publication Series No. 36 (2022) – page 316 9. Unity and Disunity in International Criminal Justice ries and rules, and the modes by which they are expressed, whether by means of language, culture, social relations or power structures. Or it might help expose implicit biases or anachronistic dogma that have been internalised and which might, on critical examination, prove to be incongruous with the demands and needs of contemporary society. In this context, law not only seeks to reflect prevailing practices, but is also a normative enterprise that seeks to enunciate certain transformative goals for individual and collective modes of existence: to conceptualise a different reality that may be both desirable and possible. 9 Law can serve this function because the way things are in the society around us is neither inevitable nor impermeable. As social theorists have long taught us, what we perceive to be reality can be distinguished between physical phenomena that are not dependent on a human observer – such as mountains, oceans and deserts – and socially constructed facts or phenomena – such as territorial boundaries, language, culture, beliefs and institutions – which are all the product of human invention. Social reality shapes our understanding of the world around us; and because it is a product of the human mind, social reality can be altered. 10 The importance of this distinction can easily be underappreciated, as we have often tended to confuse what is permanent, unchanging and naturally occurring with what we have created through human agreement and are therefore capable of changing. For the philosopher John Searle, the entire structure of social reality is often taken for granted by individuals, who are brought up in a culture that conveys social facts in the same way it presents rocks and trees. 11 Scholars in anthropology and sociology, exploring the subtle and complex dialectical relationship between human nature and culture – for example, as part of the debate over the primacy of structure or agency in shaping human behaviour – have similarly helped unravel the process whereby practices become so internalised that they appear natural and inevitable, and therefore impervious to change. 12 For instance, although the institution of slavery was justified for generations by racial theories that were used to hierarchically structure the relations among peoples, 9 10 11 12 See also Section 9.6. below on the limitations of the law. John R. Searle, The Construction of Social Reality, Free Press, 1995, pp. 3–5, distinguishing between ‘brute’ facts and ‘institutional’ facts. Ibid., pp. 12–13. See, generally, Sherry B. Ortner, Anthropology and Social Theory: Culture, Power, and the Acting Subject, Duke University Press, 2006, pp. 1–18. Publication Series No. 36 (2022) – page 317 Philosophical Foundations of International Criminal Law: Legally-Protected Interests one of the ways the abolitionist movement succeeded in galvanising public opinion was by demonstrating the cultural contingency of the concepts and values underpinning slavery. 13 At the same time, behavioural change is not governed by legislative change alone. Thus, while the abolition of slave trade – with related legislative change and its enforcement on the high seas – signalled the absorption of this normative shift at the formal level of the rapport among nations, 14 the persistence of racism within society, where cultural practices and norms reside, shows that the internalisation of new paradigms and related behavioural adjustments at the individual and institutional levels can be far harder to achieve. The idea that the world is more complex than it seems – that it needs to be ‘unmasked’ – has of course longstanding pedigree as a form of social critique, 15 even if its implications have often been lost in practice. As obvi- 13 14 15 Karlberg, 2004, p. 4, see supra note 4. See also Marc Howard Ross, The Culture of Conflict: Interpretations and Interests in Comparative Perspective, Yale University Press, 1993, (discussed in Karlberg, 2004, pp. 6–7), distinguishing between the ‘socio-structural’ dimensions of culture, which focus social change on reform of the objective structures of social organisation (that is, tackling underlying structural conflicts through legal reform, reorganising of institutional arrangements and relations) compared to ‘psycho-cultural’ dimensions, focussed on the subjective structures of the mind, which might lead to an emphasis on awareness raising, rethinking of values or identities or reforming attitudes and beliefs; Paul Ingram and Brian S. Silverman, “The Cultural Contingency of Structure: Evidence from Entry to the Slave Trade In and Around the Abolition Movement”, in American Journal of Sociology, 2016, vol. 122, no. 3, pp. 755–97. On shift from widespread acceptance to general condemnation under national and international law, see Seymour Drescher and Paul Finkelman, “Slavery”, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law, Oxford University Press, 2012, pp. 890–916. On the contemporary persistence of racial inequality and racial attitudes in the United States decades after the repeal of segregation and disenfranchisement laws, see Eduardo Bonilla-Silva, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America, 5th edition, Rowman & Littlefield, 2018. Koskenniemi calls this a “trope of modernity” (Martti Koskenniemi, “International Law as Therapy: Reading The Health of Nations”, in European Journal of International Law, 2005, vol. 16, no. 2, p. 330, citing Peter Sloterdijk, Critique of Cynical Reason, University of Minnesota Press, 1988), although its ancestry is of course much older; see, for example, the Hindu concept of ‘māyā’ or illusion as discussed in Surabhi Sharma, “Humanity and Unity: Indian Thought and Legal Interests Protected by International Criminal Law”, in Chapter 8 above. On the more instrumental use of stock phrases such as “tearing off the mask, of lifting the veil, and of making us see through the disguise” to deflect and obscure engagement on the merits of a particular argument or attempt at social change, see Albert Hirschman, Publication Series No. 36 (2022) – page 318 9. Unity and Disunity in International Criminal Justice ous as the case of slavery may appear to us now, the same is true of other socially constructed realities that shape our world today and which we may easily take for granted. Deeper analysis of underlying concepts and values might lead to a theory being debunked, as in the case of racial theories, or it might lead to an assessment of whether our theory of a particular social phenomenon has been extended beyond its original context into new domains without interrogating its continued applicability or relevance. 16 In this context, the assumed objectivity, neutrality and universality of our social discourses, such as concerning international law itself, might be interrogated. 17 Moreover, because the relationship between the individual and 16 17 The Rhetoric of Reaction: Perversity, Futility, Jeopardy, Harvard University Press, 1991, pp. 79-80, describing this as a “tired metaphor”. See, for example, Thomas Kuhn, Structure of Scientific Revolutions, University of Chicago Press, 1962, pp. 66–91, on how a dominant theory or paradigm over time may accumulate anomalies which become increasingly difficult to resolve, weakening the paradigm itself and leading, after a period of crisis or failure of the theory, to a paradigm shift, in which underlying assumptions are re-examined and a new paradigm established. Similarly, David Bohm distinguishes between an approach to theories which treats them as a form of insight, that is, a way of looking at the world, and which is therefore relative, and as a form of knowledge of how the world is, and which is absolute. He argues that when a particular theory which is relevant for a certain range of phenomena, such a Newtonian dynamic, is extended into new domains, such as quantum mechanics, it ceases to work or leads at best to increasingly unclear results. Such underlying relativity of the theories themselves is not problematic unless we mistake our theories for reality itself: otherwise, this would mean that Newton’s theories were true until around the turn of the twentieth century and then somehow suddenly became false, or that relativity and quantum theory suddenly became the truth. According to Bohm, failure to understand that our theories are ever-changing forms of insight limits our vision, “since it leads us to approach nature, society, and the individual in terms of more or less fixed and limited forms of thought, and thus, apparently, to keep on confirming the limitations of these forms of thought in experience”; David Bohm, Wholeness and the Implicate Order, Routledge, 1980, pp. 3–4. The debate over the usefulness of the domestic analogy of criminal law at the international level is an example of this type of discourse; see, for example, Immi Tallgren, “The Sensibility and Sense of International Criminal Law”, in European Journal of International Law, 2002, vol. 13, no. 3, pp. 565–67; Mark A. Drumbl, Atrocity, Punishment, and International Law, Cambridge University Press, 2007, pp. 8, 24, 123–24; Mark Osiel, “The Banality of Good: Aligning Incentives against Mass Atrocity”, in Columbia Law Review, 2005, vol. 105, no. 6, p. 1753; Darryl Robinson, “The Identity Crisis of International Criminal Law”, in Leiden Journal of International Law, 2008, vol. 21, no. 4, pp. 925–63. See, for example, a focus on gender as an analytical tool to critique narratives of the normality and objectivity of international law in Catharine MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence”, in Signs, 1983, vol. 8, no. 4, pp. 636, 644–45, and Anne Orford, “Contesting Globalization: A Feminist Perspective on the Future of Human Rights”, in Transnational Law and Contemporary Problems, 1998, vol. 8, p. 195. On the centrality of colonialism in the constitution of international law and its basic Publication Series No. 36 (2022) – page 319 Philosophical Foundations of International Criminal Law: Legally-Protected Interests society is reciprocal, the structures of social reality also act upon our thought and demarcate the parameters within which we think, thereby potentially limiting our perspective of what is possible and reinforcing prevalent social structures. 18 The idea that we can change social reality by changing how we think about the world underlies Allott’s conviction in the central role of thought and of philosophy in the creation of a more just society. 19At the same time, 18 19 doctrines, see Antony Anghie, “Finding the peripheries: sovereignty and colonialism in nineteenth-century international law”, in Harvard International Law Journal, 1999, vol. 40, no. 1, pp. 1–71; Antony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge University Press, 2005; Bhupinder Singh Chimni, “Third World Approaches to International Law: A Manifesto”, International Community Law Review, vol. 8, no. 1, 2006, 3-27. See also Morten Bergsmo, Wolfgang Kaleck and Kyaw Yin Hlaing (eds.), Colonial Wrongs and Access to International Law, Torkel Opsahl Academic EPublisher, Brussels, 2020 (http://www.toaep.org/ps-pdf/40-bergsmo-kaleck-kyaw). For Foucault, law is one of the manifold forms of domination exercised within society to constrain and supress individuals in order to maintain and enhance political power, thereby restraining the possibility for social change: “The system of right, the domain of the law, are permanent agents of these relations of domination, these polymorphous techniques of subjugation”, see Michel Foucault, “Two Lectures”, in Michael Kelly (ed.), Critique and Power: Recasting the Foucault/Habermas Debate, MIT Press, 1994, p. 34. Foucault states that law inculcates a relationship of domination marked by rituals and meticulous procedures that impose rights and obligations, while at the same time those “[r]ules are empty in themselves … are impersonal and can be bent to any purpose.”; Michel Foucault, “Nietzsche, Genealogy, History”, in Donald F. Bouchard (ed.), Language, Counter-Memory, Practice: Selected Essays and Interviews, Cornel University Press, 1977, pp. 150-151. Cornell argues that the contingency of notions of ‘justice’ and its irreducibility to the pre-given norms of any established legal system (following Derrida), represents also its ‘openness’ to adaptive interpretation rather than closure, and calls for greater judicial responsibility to seize law’s transformative potential; see Drucilla Cornell, The Philosophy of the Limit, New York and London, 1992, p.166. Cf. Anthony Giddens, New Rules of Sociological Method, Stanford University Press, 1993, pp. 128–29, on the duality of structure which sees structure and agency as intrinsically related, such that the structure of society can both constrain and enable action: “social structures are both constituted by human agency, and yet are the very medium of this constitution”. Philip Allott, The Health of Nations: Society and Law beyond the State, Cambridge University Press, 2002, p. 421: “[…] our social ideals and our social possibilities are trapped and stifled within the mental structures which divide and disable the human world, structure which human consciousness has made and which human consciousness can remake”; and Philip Allott, Eutopia: New Philosophy and New Law for a Troubled World, Edward Elgar Publishing, 2016, pp. 3–6. See also Jürgen Habermas, The Divided West, Ciaran Cronin ed. and trans., Wiley, 2006, p. 117: “Whereas the role of political science is to describe the state of international relations and that of jurisprudence is to give account of the concept, validity, and content of international law, philosophy can try to clarify certain basic conceptual features of the development of law in the light of both existing constellations and valid norms”. Publication Series No. 36 (2022) – page 320 9. Unity and Disunity in International Criminal Justice if ideas map out the possibilities of what could be, we are concomitantly challenged by the tension between normative ideals and their concrete realisation. 20 One of the challenges this gives rise to is the reliability of our perceptions of reality, both individually and collective. If our knowledge of the world around us is inter-subjective, this can tend towards nihilism: that is, if reality is relative to one’s experience, the notions of truth, ethics and morality all become subjective, nullifying thereby the very possibility of arriving at a collective ethos for any collective enterprise. 21 But if incredulity towards meta-narratives might represent the post-modern condition, 22 one of the basic thrusts of deconstructionist analysis, as it has inspired critical legal theorists for example, is on the need for vigilance in interrogating the value-laden nature of the binary terms we use to frame our discourses in order to expose their inherent instability and self-subverting character. 23 While this might give pause for reflection and critical interrogation of our 20 21 22 23 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, Cambridge University Press, 2006 (1989), pp. 17–23. For Allott, “the power of the ideal […] [itself] generates a powerful attractive force inclining us to seek to actualise it”; 2002, p. 83, see supra note 19; “Societies live within the theories they make. A society generates a theory-filled reality which shapes its willed action which, in turn, shapes its actual everyday living”. See also Philip Allott, Eunomia New Order for a New World, Oxford University Press, 1990, p. 38. See also Sections 9.4.–9.5. below on contrasting ILC discussions on the desirability and possibility of establishing a permanent international criminal court. Alasdair MacIntyre critiques this as the moral crisis arising from the doctrine of ‘emotivism’, namely “that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character”; After Virtue: A Study in Moral Theory, Bloomsbury, 2014, p. 13. See, in this context, Searle’s distinction between ontological subjectivity and epistemological objectivity, meaning that although social reality may not have an existence outside of human agreement, what we know about social reality is not just a matter of personal opinion, but is objectively ascertainable; Searle, 1995, pp. 12–13, see supra note 10. On the problem of obtaining a more objective understanding of reality more generally, see Thomas Nagel, The View from Nowhere, Oxford University Press, 1986, p. 4: “Objectivity is a method of understanding. It is beliefs and attitudes that are objective in the primary sense. Only derivatively do we call objective the truths that can be arrived at in this way”. Jean-François Lyotard, La Condition Postmoderne: Rapport sur le Savoir, Les Éditions de Minuit, Paris, 1979, translated to English in Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge, Geoff Bennington and Brian Massumi trans., University of Minnesota Press, 1984, pp. xxiv, 81-82. t Christopher Norris, Deconstruction: Theory and Practice, 3rd edition, Routledge, 2002, p. 165. Relevant binary terms in this context might include ‘good’ and ‘evil’, ‘sovereignty’ and ‘community’, and ‘unity’ and ‘fragmentation’. Publication Series No. 36 (2022) – page 321 Philosophical Foundations of International Criminal Law: Legally-Protected Interests underlying assumptions, it need not negate the possibility of arriving at any value judgements. 24 And yet, even if shared assumptions or values underpinning human society can be identified and relied upon to advance social justice, we might still disagree on the form in which such action is pursued. The modest purpose of this short chapter is not to survey the variegated expressions of such analyses in accounts of international law by philosophers, legal theorists or political scientists. 25 The point here is merely to recall that the project of international criminal justice, like international law more generally, is a normative enterprise and that how we think about international law has an impact on social reality, just as social reality impacts international law: meaning that the foundational concepts and fundamental values that underpin the discipline directly influence its outcome. 26 24 25 26 See, for example, Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority’”, in Cardozo Law Review, 1990, vol. 11, nos. 5–6, pp. 953 et seq., while challenging abstract universalist notions of ‘law’, ‘justice’, ‘values’ and ‘norms’, observes: “what is currently called deconstruction would not correspond (though certain people have an interest in spreading this confusion) to a quasi-nihilistic abdication before the ethico-politico-juridical question of justice and before the opposition between just and unjust”, going on to stress that this requires an assumption of responsibility for recognising the consequences of contingency, which includes the potential for transformation, and thus assuming responsibility for our actions and judgments. See also Koskenniemi, 2006, pp. 501–12, see supra note 20, on the problem of indeterminacy arising from the reversibility of any legal concept, by which it may be projected with a meaning that links it to any mutually opposing set of principles, such that there is no automatic, objective meaning can be attributed to such terms; but which is nonetheless assuaged by a certain ‘structural bias’ that steers legal institutions applying international law away from nihilism, pp. 606–07. For helpful reviews, see, for example, Bianchi, 2016, see supra note 7; Jutta Brunnée and Stephen J. Toope, “Constructivism and International Law”, in Jeffery Dunoff and Mark Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, Cambridge University Press, 2012, pp. 119–45. See, similarly, Morten Bergsmo, Emiliano J. Buis and Nora Helene Bergsmo, “Setting a Discourse Space: Correlational Analysis, Foundational Concepts, and Legally Protected Interests in International Criminal Law”, in Morten Bergsmo and Emiliano J. Buis (eds.), Philosophical Foundations of International Criminal Law: Correlating Thinkers, Torkel Opsahl Academic EPublisher, Brussels, 2018 (http://www.toaep.org/ps-pdf/34-bergsmobuis), p. 11: “a philosophical approach can contribute towards critical questioning of fundamental concepts and reasoning about values protected. It can provide a higher level of abstraction that helps us see more clearly where international criminal law falls short of the future”. As Goldstein and Keohane summarise the contrary view: “To many economists, and to political scientists captivated by their modes of thinking, ideas are unimportant and epiphenomenal either because agents correctly anticipate the results of their actions or because some selective process ensures that only agents who behave as if they were rational succeed […] The extreme version of this argument is that ideas are just hooks: competing elites seize on popular ideas to propagate and to legitimize their interests, but the ideas themselves do Publication Series No. 36 (2022) – page 322 9. Unity and Disunity in International Criminal Justice The chapter takes as its reference point the ICC, since even if the Court may not represent the sum of our experience with international criminal justice, nor necessarily its ultimate destination, it operates today in many ways as its centrepiece. In particular, the chapter seeks to explore how the ICC Statute correlates concepts related to ‘unity’ to the effective discharge of the Court’s mandate, namely: as a rationale for its establishment; in framing the social function it serves; and as a principle for its enforcement. This interplay is explored below through the threefold interrelationship created between the role of the individual in international criminal justice, the function of social institutions and the responsibility of the international community at large. 9.3. ‘Unity’ as Rationale for the Creation of the International Criminal Court Why create the ICC? The opening lines of the Preamble to the Rome Statute read: Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity[.] Who are the “peoples” referred to in the ICC Preamble? We can read the term as it has developed within the context of self-determination or third-generation group rights, or in its use as legitimation, such as in the UN Charter, adopted by governments acting in the name of their citizens. But the use of the term “all peoples” in the Preamble appears to be more universal, linked in the paragraph that follows to not only the “children, women and men” who “have been victims of unimaginable atrocities”, but to all humanity, whose conscience is deeply shocked. What does it mean to express, in the words of the Preamble, consciousness of the common bonds that unite all peoples? Notwithstanding the collaborative dynamic that underlay the efforts of civil society actors and delegates in Rome, the negotiators that ultimately signed up to these not play a causal role”; Judith Goldstein and Robert O. Keohane, “Ideas and Foreign Policy: An Analytical Framework”, in Judith Goldstein and Robert O. Keohane (eds.), Ideas and Foreign Policy: Beliefs, Institutions, and Political Change, Cornell University Press, Ithaca, 1993, p. 4. Publication Series No. 36 (2022) – page 323 Philosophical Foundations of International Criminal Law: Legally-Protected Interests lines 27 were not sentimental utopians, but State representatives drawn from ministries of foreign affairs, justice and defence, under cabinet supervision. The consciousness they expressed, moreover, was not in celebratory affirmation of an apolitical cross-cultural fraternity such as the Olympic movement, but against the backdrop of the most horrendous manifestations of political violence and human cruelty. In this context, to express concern that “this delicate mosaic may be shattered at any time” is to recognize the fragility of human existence and the destructive capacity of human beings to destroy human society. What, then, are we to make of these statements? We can gloss over these lines as merely hortatory and affirmative of basic values long championed in the founding instruments of international humanitarian law, such as in the Martens Clause, or as reflected in the Preamble of the UN Charter or the constitutional principles set out in the Charter’s second article. The ICC Preamble might be admitted to constitute part of the context within which the treaty is to be interpreted, 28 but said to convey rather obvious and somewhat meaningless statements relative to the Statute’s overall operation, constituting no more than some sort of vague or pious hope. We might confess that humanity appears to be incapable of achieving this vision, because conflict characterises our modes of interaction and social organisation to such an extent that we may have come to accept such behaviour as intractable. Notwithstanding the difficulty of discerning the drafters’ intent, the Court that is now established and is in operation has the task of interpreting and applying the Statute and must decide what meaning, if any, is to be drawn from these passages. This is particularly so since a preamble can serve to highlight several core elements that motivate and justify an instrument. 29 Set in this context, the opening lines of a preamble can be read 27 28 29 Through a quirk of the drafting history the Preamble was not actually included in the final text but had to be separately adopted by the plenary – which, if anything, adds to its validity as an expression of State intentions; Otto Triffterer, Morten Bergsmo and Kai Ambos, “Preamble”, in Otto Triffterer and Kai Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary, 3rd edition, C.H. Beck, 2016, p. 5, at mn. 6. Vienna Convention on the Law of Treaties, 23 May 1969, Article 31 (http://www.legal-tools. org/doc/6bfcd4/). See also Triffterer, Bergsmo and Ambos, 2016, pp. 4–5, at mns. 4–5, see supra note 27. International Law Commission, Third report on crimes against humanity, by Sean D. Murphy, Special Rapporteur, UN Doc. A/CN.4/704, 23 January 2017, para. 298, in connection to the purpose of a preamble to the draft articles (http://www.legal-tools.org/doc/45aef6/). Publication Series No. 36 (2022) – page 324 9. Unity and Disunity in International Criminal Justice as normative statements. 30 For example, the ICC Preamble might be said to challenge certain prevalent assumptions surrounding mass atrocities, embedded in ideas about human nature and social relations. This might include the view that violence, conflict and division are inherent to the human condition, because humans as a species are incorrigibly selfish and aggressive, predisposed to war and spoliation; that group identity can only be given meaningful expression by designation of the ‘other’ and exclusion; that personal and national welfare are best served by self-interest, requiring the advancement of one’s own advantage over others; or that the lives of some matter more than others. 31 Such assumptions would tend to suggest that efforts to constrain large scale violence are destined to be pointless and inconsequential affairs in the larger scheme of things. By contrast, to affirm the essential oneness of humanity appears to suggest something different. To say that all peoples are “united by common bonds” suggests that they together constitute a ‘whole’, a single and indivisible unit, which is the body of humanity itself. 32 And to state that our 30 31 32 Triffterer, Bergsmo and Ambos, 2016, at mn. 4, see supra note 27. For the classical realist articulation of these types of assumptions, see, for example, Hans J. Morgenthau, and Kenneth W. Thompson, Politics Among Nations: The Struggle for Power and Peace, Knopf, New York, 1985, pp. 31–33: “The tendency to dominate […] is an element of all human associations, from the family through fraternal and professional associations and local political organizations, to the state”, continuing “the whole political life of a nation […] is a continuous struggle for power”. Cf. Payam Akhavan, In Search of a Better World: A Human Rights Odyssey, House of Anansi Press, 2017, pp. 151–153: “The conception of mass murder as rooted in human nature is often a convenient absolution from our shared responsibility to confront injustice […] Familiarity with the anatomy of genocide may well suggest that often the great evils of our time are predictable […] There is nothing random or spontaneous about radical evil; it is a conspiracy of prodigious proportions. Rarely does it just creep up on us without warning. The real question is not whether we can stop genocide; it is whether we have the will to intervene”. See, for example, Kristen Monroe, The Heart of Altruism: Perceptions of a Common Humanity, Princeton University Press, 1996, p. 206, whose empirical research concludes that the prevalent self-interest paradigm appears unable to account for case studies of individuals who display “a particular perspective in which all mankind is connected through a common humanity, in which each individual is linked to all others and to a world in which all living beings are entitled to a certain humane treatment merely by virtue of being alive […] it is a very simple but deeply felt recognition that we all share certain characteristics and are entitled to certain rights, merely by virtue of our common humanity”. See also Karlberg’s discussion on recognition of humanity’s increasing global interdependence, in Michael Karlberg, “Reframing Public Discourses for Peace and Justice”, in Karina Korostelina (ed.), Forming a Culture of Peace, Palgrave Macmillan, New York, 2012, pp. 24-32. In this context, the idea of organic unity between the individual and the collective has sometimes been reflected in the image of the human body, given the complex biological integration of its di- Publication Series No. 36 (2022) – page 325 Philosophical Foundations of International Criminal Law: Legally-Protected Interests “cultures [are] pieced together in a shared heritage” suggests that it is the diverse expressions of human experience that link together to form our common identity. Whereas the term “heritage”, associated with ‘inheritance’, normally denotes features that belong to the culture of a particular society which have been passed down from previous generations, the imagery used here suggests that our common inheritance is humanity itself. 33 Another way to look at the affirmation of the unity of all peoples might be in terms of the notion of ‘trusteeship’: the idea that each individual is a trust of the whole. Even if limited in the context of the Statute to “universally valid proscription[s] of specific evil”, 34 this would suggest that the welfare of each is the concern and responsibility of all, because of our common bonds of humanity. 35 Equally, upon the fate of each is dependent the welfare of the whole, since we are all impacted by these crimes, implicit in the phrase that such atrocity crimes “deeply shock the conscience of 33 34 35 verse cells to enable, or through maladaptation inhibit, the health and functioning of the entire human frame. See, similarly, Triffterer, Bergsmo and Ambos, 2016, at mn. 7, see supra note 27, characterising this as an expression of “unity in diversity”. Compare the more contested application of the notion of ‘common heritage of mankind’ in relation joint or collective management or communal ownership of the spatial areas such as outer space, the deep seabed, Antarctica or the subsoil beyond national jurisdiction; see Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law, Martinus Nijhoff Publishers, 1998, pp. 1–7. David Wiggins, Ethics: Twelve Lectures on the Philosophy of Morality, Harvard University Press, 2009, p. 355, with reference to core proscriptions of international crimes as representing “ideas or notions that human societies find they really can share”, contrasting this category with attempts at the international level to formulate “a mass of general judgments or to attempt general prescriptions about millennial goals for the world (which will be interpreted over and over again to reflect the preoccupation of states that are powerful, but unpractised in self-examination, and are caught between the benevolent impulses of their citizens and the insatiable demands of an economy that they dare not contemplate trying to set in a different direction)”; although as discussed below in Section 9.6., the implications of ‘unity’ even in relation to this limited category has failed to generate the necessary consensus to effect routine compliance. See Karlberg, 2004, pp. 133–34, see supra note 4, on trusteeship as the moral foundation for human rights. See similarly the concept of ‘human security’ set out in 1982, Olaf Palme Commission: Common Security: A Programme for Disarmament: Report of the Independent Commission on Disarmament and Security Issues, Pan Books, 1982; or the concept of ‘sovereignty as responsibility’ in International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty, International Development Research Centre, 2001, para. 2.14. For a discussion of historical precursors, see Luke Glanville, “The antecedents of ‘sovereignty as responsibility’”, in European Journal of International Relations, 2011, vol. 17, no. 2, pp. 233–55. See also Surabhi Sharma in Chapter 8 above. Publication Series No. 36 (2022) – page 326 9. Unity and Disunity in International Criminal Justice humanity”, or in the emblematic proscription of certain acts, due to their scale and organised brutality, as crimes committed against humanity as a whole. 36 Trusteeship in this context gives practical expression to the responsibility implicit in the general principle of respect for human dignity. 37 As noted by the ad hoc Tribunals, “respect for human dignity is the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights law; indeed in modern times it has become of such paramount importance as to permeate the whole body of international law”. 38 Set out as the lead statement in the ICC Preamble, arguably this consciousness, with its implications for trusteeship and human dignity, ultimately serves as the rationale for creating an international criminal court 36 37 38 Israeli Supreme Court, Attorney-General of the Government of Israel v. Eichmann, Judgment, 29 May 1962, 36 ILR 277, para. 12 (http://www.legal-tools.org/doc/f204ef/). David J. Luban, “A Theory of Crimes Against Humanity”, in Yale Journal of International Law, 2004, vol. 29, no. 1, pp. 86–91, offers two interpretations of ‘humanity’, linked to ‘humankind’ or membership of the human race, compared to an interpretation linked to the quality of ‘humaneness’ or the quality of being human, the latter drawing from Hanna Arendt’s argument that what makes crimes against humanity an offense against humanness is their assault on human diversity, namely the “characteristic of the ‘human status’ without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning”; ibid., p. 114; Hanna Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, revised and enlarged edition, Viking Press, New York, 1965, pp. 268–69. See also Martti Koskenniemi, “Constitutionalism as Mindset: Reflections on Kantian Themes About International Law and Globalization”, Theoretical Inquiries in Law, 2007, vol. 8, no. 1, p. 35; Susan R. Lamb, Chapter 3 above; Nakhjavani and Mirzaagha, Chapter 6 above; Kafayat Motilewa Quadri, Vahyala Kwaga and Tosin Osasona, “Forging a Modern African Perspective on ‘Unity’ as a Collective Legal Interest in International Criminal Law”, Chapter 7 of this volume. See Oscar Schachter, “Human Dignity as a Normative Concept”, in American Journal of International Law, 1983, vol. 77, no. 4, pp. 848–54; Kai Ambos, “Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution towards a Consistent Theory of International Criminal Law”, in Oxford Journal of Legal Studies, 2013, vol. 33, no. 2, pp. 304–14, tracing the implications of human dignity, predicated on Kant’s conception, as a rationale for international criminal justice. ICTY, Prosecutor v. Furundžija, Trial Chamber, Judgment, 10 December 1998, IT-95-17/1-T, para. 183 (“Furundžija Trial Judgment”) (http://www.legal-tools.org/doc/e6081b/); ICTR, Prosecutor v. Muhimana, Trial Chamber, Judgment and Sentence, 28 April 2005, ICTR-951B-T, para. 539 (http://www.legal-tools.org/doc/87fe83/). See also ICTY, Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, IT-94-1-A, para. 59 (http://www.legal-tools.org/doc/866e17/). See also Akhavan, 2017, pp. 274–78, see supra note 31, on human dignity as a reflection of our self-definition about human nature. For discussion on the centrality of human dignity in rooting legitimate global prescriptive authority in international criminal law, see Margaret DeGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, Oxford University Press, 2020, pp. 87 et seq. Publication Series No. 36 (2022) – page 327 Philosophical Foundations of International Criminal Law: Legally-Protected Interests of potentially global and compulsory jurisdiction. 39 The unreserved acceptance of the oneness of humanity becomes the starting point for international justice. Put differently, if we did not care about what happens to other people in other parts of the world, or they did not care about us, there would be no point to create a criminal jurisdiction that would fight impunity for atrocity crimes around the world – we would only be interested in our own welfare and create, at most, ad hoc mechanisms as the need and political will arose to address our more limited concerns and interests, which might be based on entirely different rationales. A universal mechanism is only justified if we believe the commission of atrocities, in any part of the world, is of concern to us all. 40 There is of course the perennial danger that appeals to ‘unity’ might disguise the workings of hegemony. As has often been noted, projects of world community, which seek to speak in the name of humanity, can easily mask the advancement of particular power interests. As modern history shows, universalist rhetoric has often been a tool of imperialist expansion to justify the worst forms of international violence. 41 Moreover, even if the 39 40 41 Potentially ‘global’ due to universal treaty adherence or referral of situations by the Security Council, and ‘compulsory’ due to the absence of additional state consent (opt-in) requirements for the exercise of jurisdiction pursuant to Article 12 or 13(b) of the ICC Statute. See similarly Luban, 2004, p. 88, see supra note 36: “‘crimes against humanity’ suggests that the defining feature of these offenses is the party in interest. In law, some wrongs – chiefly civil wrongs, like torts – are thought to affect only the victims and their dependents. Other wrongs, inflicted on equally determinate victims, violate important community norms as well, and the community will seek to vindicate those norms independently of the victim […] Viewed along these lines, the term ‘crimes against humanity’ signifies that all humanity is the interested party and that humanity’s interest may differ from the interests of the victims”. Beth Van Schaack describes the application of crimes against humanity by the postwar tribunals as revolutionary, insofar as these crimes embodied “the beginnings of a universal moral code addressing the way in which states may treat their citizens”, in “Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law & Morals”, 97 Georgetown L. J. 119 (2008), p. 133. See also Triffterer, Bergsmo and Ambos, 2016, at mn. 8, see supra note 27, observing justice in this context is meted out “not only in the name of individuals or groups of victims, but also on behalf of humanity as such”. Cf. Antony Duff, “Authority and Responsibility in International Criminal Law”, in Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, 2010, pp. 597–602, critiquing the Statute’s preambular aspiration to be mete out justice on behalf of humanity. See, for example, Carl Schmitt, Der Begriff des Politischen, Duncker & Humblot, Berlin, 1932, translated to English in Carl Schmitt, The Conception of the Political, George Schwab trans., Rutgers University Press, 1976, p. 54: “To confiscate the word humanity, to invoke and monopolise such a term probably has certain incalculable effects, such as denying the Publication Series No. 36 (2022) – page 328 9. Unity and Disunity in International Criminal Justice invocation of ‘humanity’ might represent a more innocent ‘oceanic feeling’ of universal fraternity felt by “well-placed professional travelling across cosmopolitan spaces, into institutional projects”, it is also true that its invocation arguably cannot escape the particularity of the authority claim made in its name. 42 Bartelson frames this familiar paradox as the perennial risk 42 enemy the quality of being human and declaring him to be an outlaw of humanity; and war can thereby be driven to the most extreme inhumanity”; Edward Hallett Carr, in Michael Cox (ed.), The Twenty Years’ Crisis, 1919-1939: An Introduction to the Study of International Relations, Palgrave, 2001 (1939): The “intellectual theories and ethical standards of utopianism, far from being the expression of absolute and a priori principles, are historically conditioned, being both products of circumstance and interests and weapons framed for the furtherance of interests. ‘Ethical notions’, as Mr. Bertrand Russell has remarked, ‘are very seldom a cause, but almost always an effect, a means of claiming universal legislative authority for our own preference, not, as we fondly imagine the actual ground of those preferences’ […] [T]he utopian, when he preaches the doctrine of the harmony of interests, is innocently and unconsciously adopting Walewski’s maxim, and clothing his own interest in the guise of the universal interest for the purpose of imposing it on the rest of the world”; with Carr earlier noting, at p. 69: “Bismarck records the remark made to him by Walewski, the French Foreign Minister, in 1857, that it was the business of a diplomat to cloak the interests of his country in the language of universal justice”. See also Prosper Weil, “Towards Relative Normativity in International Law?”, in American Journal of International Law, 1983, vol. 77, no. 3, p. 441: “There is a danger of the implantation in international society of a legislative power enabling certain states – the most powerful or numerous – to promulgate norms that will be imposed on the others […]. Those privileged to partake of that legislative power are in a position to make sure that their own hierarchy of values prevails and to arrogate the right of requiring others to observe it. In this way the concepts of ‘legal conscience’ and ‘international community’ may become code words, lending themselves to all kinds of manipulation, under whose cloak certain states may strive to implant an ideological system of law that would be a negation of the inherent pluralism of international society.”; Foucault, 1994, see supra note 18, p. 22, warning against the “tyranny of globalizing discourses” based on universal claims of totalising explanations, since appeals to ideals such as peace, freedom or justice merely mask the workings of the self-legitimizing extant powers relations. Martti Koskenniemi, “Projects of World Community”, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford University Press, 2012, pp. 9–10; David Kennedy, “International Human Rights Movement: Part of the Problem?”, in Harvard Human Rights Journal, 2002, vol. 15, pp. 101–26 (‘Kennedy, 2002a’); David Kennedy, “The international human rights regime: still part of the problem?”, in Rob Dickinson, Elena Katselli, Colin Murray and Ole W. Pedersen (eds.), Examining Critical Perspectives on Human Rights, Cambridge University Press, 2012, pp. 25–27, 31 (‘Kennedy, 2002b’). See also Carlo Focarelli, International law as Social Construct: The Struggle for Global Justice, Oxford University Press, 2012, pp. 380–81, on definitions of ‘humanity’, and pp. 456–61, on the competing value claims made in the name of humanity. The inescapabilty of our own perspective and an emphasis on contingency are of course key themes in modern thought; Friedrich Nietzsche, in Rolf-Peter Horstmann and Judith Norman (eds.), Beyond Good and Evil: Prelude to a Philosophy of the Future, Cambridge University Press, 2002 (1886), pp. 5 Publication Series No. 36 (2022) – page 329 Philosophical Foundations of International Criminal Law: Legally-Protected Interests that “every effort to impose a given set of values on the existing plurality of communities in the name of a common humanity is likely to be met with resistance on the grounds of its own very particularity”. 43 As Koskenniemi notes, the “effort to imagine a law that would be applicable everywhere is as old as legal thinking itself”, 44 but appeals in the name of humanity typically fail because of the different, often contested, ideas of what the world community should be like and how we should be governed: the ambivalence of our ideas about world community reflected in our oscillation between a desire for world ‘unity’ and our historical experience of the havoc often wreaked by advocates of such ‘unity’, which suggests that “diversification, separation and distinctness are often at least as important as unity and community, and often more intensely felt”. 45 In the absence of universal adherence, the potential for ‘unity’ is also only partially fulfilled by the Rome Statute: the treaty being anchored to a host of other notions that appear, at least formally, at odds with ‘unity’. The very Preamble attests to such fragmentary self-conceptions, struggling to constrain the competing concepts of ‘community’ and ‘autonomy’ without falling into hegemony on the one hand, or legitimating State-centrism on the other. 46 The Statute is, first and foremost, a treaty, adhered to through a process of State consent; and even when the Court operates outside of its treaty-based jurisdiction, it does so on the basis of another treaty, the UN 43 44 45 46 et seq.; Friedrich Nietzsche, Keith Ansell-Pearson ed., Carol Diethe trans, On the Genealogy of Morality, Cambridge University Press, 2006 (1887), p. 87. Jens Bartelson, Visions of World Community, Cambridge University Press, 2009, pp. 1-3. See more generally Nagel, see supra note 21. Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870, Cambridge University Press, 2021, p. 949. Koskenniemi, 2012, p. 11, see supra note 42. See nonetheless Koskenniemi’s discussion on a ‘culture of formalism’ as a technique or practice to enable a discourse on universal values in “search for something beyond particular interests and identity politics, or the irreducibility of differences”, in Koskenniemi, 2001, pp. 494–509, see supra note 7. See also David Kennedy, “One, Two, Three, Many Legal Orders: Legal Pluralism and the Cosmopolitan Dream”, in New York University. Review of Law & Social Change, 2007, vol. 31, no. 3, pp. 641–59. Borrowing Koskenniemi’s alternative descriptions of social life among States in terms of ‘community’ and ‘autonomy’, when characterising international legal projects, such as the UN Charter; 2006, p. 476, see supra note 20. Tallgren contrasts these tendencies in the contradictory expectations attending the rationale of international law, with its horizontal framework of sovereign equality and voluntarily accepted rules, and the criminal law, with its normative projection of common values and utilitarian societal goals such as prevention, restoration and rehabilitation; Tallgren, 2002, p. 562, see supra note 16. Publication Series No. 36 (2022) – page 330 9. Unity and Disunity in International Criminal Justice Charter. Chambers of the Court constantly re-affirm their own competence by recourse to State consent and basic rules of treaty interpretation. And while the Statute might be said to impose certain limits on sovereignty, these operate along the familiar lines that have been accepted in public international law more generally, based on the consent of the relevant State to be so bound (as an ICC State Party, as a State declaring its ad hoc acceptance of the Court’s exercise of jurisdiction, or as a UN Member State required to accept and carry out a decision of the Security Council adopted under Chapter VII of the UN Charter). 47 This includes provisions such as the Court’s authority to apply the Statute equally to all persons without distinction based on official capacity or to exercise its jurisdiction irrespective of immunities or special procedural rules that may attach to the official capacity of any person; 48 its power to require co-operation from, and to extend application of the Court’s legal framework with respect to, a non-Party State that is the subject of a Security Council Chapter VII resolution; 49 its 47 48 49 See, for example, Permanent Court of International Justice (‘PCIJ’), S.S. Wimbledon (U.K. v. Japan), Judgment, 17 August 1923, 1923 PCIJ (ser. A) No. 1 (Aug. 17), para. 35 (http:// www.legal-tools.org/doc/ab625e/), describing treaty making, including “restriction upon the exercise of the sovereign rights of the State” as an attribute of sovereignty; ICJ, Monetary Gold Removed from Rome in 1943 (Italy v. France et al.), Judgment, 15 June 1954, pp. 17– 19 (http://www.legal-tools.org/doc/a23855/), recalling States are not subject to compulsory adjudication without their consent. See also Luigi Condorelli and Antonio Cassese, “Is Leviathan Still Holding Sway over International Dealings?”, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law, Oxford University Press, 2012, p. 14: “The overall logic of the phenomenon [the sovereign choice of States to accept limits to their sovereignty] does not […] appear to be that of expropriation of state competencies, but rather of assignment, transfer, or delegation”. Article 27, ICC Statute, see supra note 8. See for example, ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Appeals Chamber, Judgment in the Jordan Referral re Al-Bashir Appeal, 6 May 2019, ICC-02/05-01/09-397, paras. 133–49 (‘Bashir Jordan Appeal’) (http://www.legal-tools.org/doc/53c62c/); ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Pre-Trial Chamber, Decision under article 87(7) of the Rome Statute on the noncompliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir, 6 July 2017, ICC-02/05-01/09-302, para. 89 (‘Bashir South Africa Decision’) (http://www.legal-tools.org/doc/68ffc1/), finding the extension of the applicability of an international treaty to a State which has not voluntarily accepted it to be in line with the UN Charter and the Security Council’s powers thereunder. Articles 13, 86, 87, ICC Statute, see supra note 8; Bashir Jordan Appeal, paras. 135–42, see supra note 48; ICC, Situation in Libya, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Pre-Trial Chamber, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to Article 95 of the Rome Statute, 1 June 2012, ICC-01/11-01/11-163, paras. 28–30 (http://www.legal-tools.org/doc/ae7c48/); ICC, Situation in Darfur, Sudan, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Publication Series No. 36 (2022) – page 331 Philosophical Foundations of International Criminal Law: Legally-Protected Interests authority to assert criminal jurisdiction over the national of a non-Party States alleged to have committed crimes in the territory of a State Party; 50 as well as its ability to render determinations on forum allocation in complementarity decisions that are binding on relevant States; 51 its power to compel the attendance of witness for testimony; 52 and the power of a public 50 51 52 Chamber, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, ICC-02/05-01/09-3, para. 248 (http://www.legaltools.org/doc/e26cf4/); ICC, Situation in Libya, Prosecutor v. Saif Al-Islam Gaddafi, PreTrial Chamber, Decision on the non-compliance by Libya with requests for co-operation by the Court and referring the matter to the United Nations Security Council, 10 December 2014, ICC-01/11-01/11-577, paras. 20–22 (http://www.legal-tools.org/doc/8e689f/); ICC, Situation in Darfur, Sudan, Prosecutor v. Banda and Jerbo, Trial Chamber, Decision on “Defence Application pursuant to Articles 57(3)(b) & 64(6)(a) of the Statute for an order for the preparation and transmission of a co-operation request to the Government of the Republic of the Sudan”, 1 July 2011, ICC-02/05-03/09-169, paras. 14–15 (http://www.legal-tools. org/doc/891c96/). See, for example, discussion on the Court’s jurisdictional competence over the nationals of non-Party States in ICC, Situation in the Islamic Republic of Afghanistan, Public redacted version of “Request for authorisation of an investigation pursuant to article 15”, 20 November 2017, ICC-02/17-7-Red, paras. 44–46 (http://www.legal-tools.org/doc/db23eb/). See also discussion of subjective territoriality, regarding the alleged deportation of Rohingya from Myanmar to Bangladesh, in ICC, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, 9 April 2018, ICC-RoC46(3)-01/18-1, paras. 28–50 (http://www. legal-tools.org/doc/4af756/), interpreting the scope of Article 12(2)(a) of the ICC Statute by reference widely recognised permissive rules in matters of prescriptive jurisdiction and routine treaty practice with respect to the assertion of domestic criminal jurisdiction over international crimes. Article 17, ICC Statute, see supra note 8; ICC, Situation in Uganda, Prosecutor v. Kony et al., Pre-Trial Chamber II, Decision on the admissibility of the case under Art. 19(1) of the Statute, 10 March 2009, ICC-02/04-01/05-377, para. 45 (http://www.legaltools.org/doc/44f5b3/). The same logic extends to other States who are required to accept the decisions of the Court, such as a State which has lodged a declaration under article 12(3) of the Statute or a UN Member State that is obliged by the Security Council to accept the Court’s exercise of jurisdiction pursuant to Article 13(b) by virtue of a resolution adopted under Chapter VII of the UN Charter. On application of the complementarity regime to a situation referred by the UN Security Council, see, for example, ICC, Situation in Libya, Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Pre-Trial Chamber, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to Article 95 of the Rome Statute, 1 June 2012, ICC-01/11-01/11-163, para. 28 and accompanying citations (http://www.legal-tools.org/doc/ae7c48/). Article 93(1)(b), ICC Statute, see supra note 8; ICC, Situation in the Republic of Kenya, Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Appeals Chamber, Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled “Decision on Prosecutor’s Application for Witness Summonses and resulting Request for State Party Co-operation”, 9 October 2014, ICC01/09-01/11-1598 (http://www.legal-tools.org/doc/e5eb09/). Publication Series No. 36 (2022) – page 332 9. Unity and Disunity in International Criminal Justice prosecutor, elected by the Assembly of States Parties, to independently trigger the initiation of investigations on the territory or by the nationals of States Parties without a State or Security Council referral 53 or to directly carry out certain investigative measures on the territory of States Parties without requiring their prior consent. 54 In the Court’s analysis, all of these powers are justified on the basis of State consent, its focus being rather on explaining precisely how such consent has been freely expressed. And in other areas, while the Court may make appeals to broader community values when making judicial determinations of non-compliance, it is wholly dependent on the autonomy of other actors, in their individual and collective capacities, to enforce its decisions. 55 By contrast, the ICC has more rarely asserted jurisdictional competence by recourse to broader community interests, such as by reference to the ius puniendi of the international community when identifying relevant rules of customary international law, 56 or through the assertion of an objective legal personality. 57 This may be due in part to its more tightly regulat53 54 55 56 57 Article 15, ICC Statute, see supra note 8. Articles 57(3)(d) and 99(4), ICC Statute, see supra note 8. See Section 9.5. below. Bashir Jordan Appeal, paras. 115, 123, see supra note 48; ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Appeals Chamber, Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, 6 May 2019, ICC-02/05-01/09-397-Anx1, paras. 201, 409, 422, 432 (http://www.legal-tools.org/doc/fd824a/); ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Pre-Trial Chamber, Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir, 15 December 2011, ICC-02/05-01/09-139-Corr (http://www.legaltools.org/doc/8c9d80/); ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Pre-Trial Chamber, Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the co-operation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, 13 December 2011, ICC-02/0501/09-140-tENG (http://www.legal-tools.org/doc/e2c576/). See, generally, Claus Kreß, “The International Criminal Court and Immunities under International Law for States Not Party to the Court’s Statute”, in Morten Bergsmo and LING Yan (eds.), State Sovereignty and International Criminal Law, Torkel Opsahl Academic EPublisher, Beijing, 2012, pp. 246 et seq. (http://www.toaep.org/ps-pdf/15-bergsmo-ling); Ambos, 2013, pp. 293–315, see supra note 37; Claus Kreß, Preliminary Observations on the ICC Appeals Chamber’s Judgment of 6 May 2019 in the Jordan Referral re Al-Bashir Appeal, Torkel Opsahl Academic EPublisher, Brussels, 2019, pp. 1–38 (http://www.toaep.org/ops-pdf/8-kress). ICC, Pre-Trial Chamber, Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, 6 September 2018, ICC-RoC46(3)-01/18-37, paras. 37–48 (‘Myanmar/Bangladesh Decision’) (http://www.legal-tools.org/doc/73aeb4/), follow- Publication Series No. 36 (2022) – page 333 Philosophical Foundations of International Criminal Law: Legally-Protected Interests ed legislative scheme which has prevented the kind of dynamic interpretation undertaken by the ad hoc Tribunals towards the sphere of their subjectmatter jurisdiction, the specific elements of crimes or to modes of liability through teleological appeals to mandated goals. 58 In general, however, the case law of international criminal courts and tribunals has shown limited tolerance for violations of State consent in pursuance of shared community values, this being largely considered in proportionality assessments concerning the exercise of jurisdiction against allegations of illegal conduct in the collection of evidence or in the delivery of suspects. On violations of domestic law in the apprehension of suspects, for example, the ICTY Appeals Chamber weighed a number of factors against exclusive national sovereignty considerations, including, among others, the “legitimate expectation [of the international community] that those accused of these crimes will be brought to justice swiftly”. 59 In admitting evidence 58 59 ing the approach of the ICJ in Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949 (http://www.legal-tools.org/doc/f263d7/). See, for example, ICTY, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 96–97, see supra note 38, in interpreting its subjectmatter jurisdiction with respect to situations of non-international armed conflict under the residual clause contained in Article 3 of its Statute, contrasting a “clearly sovereigntyoriented and […] traditional configuration of the international community, based on the coexistence of sovereign States more inclined to look after their own interests than community concerns or humanitarian demands” with the “the impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, [which] has brought about significant changes in international law, notably in the approach to problems besetting the world community”, observing “[a] State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach”. As Beth Van Schaack describes, the more malleable application of the nullum crimen sine lege principle pre-dating the ICC Statute and its Elements of Crimes has resulted in international and domestic criminal courts developing and modernizing the law born of the World War II era by means of a “a full-scale refashioning of ICL through jurisprudence […] updating and expanding historical treaties and customary prohibitions, upsetting arrangements carefully negotiated between states, rejecting political compromises made by states during multilateral drafting conferences, and adding content to vaguely worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement”, see supra note 40, pp. 123-124. ICTY, Prosecutor v. Nikolić, Appeals Chamber, Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003, IT-94-2-AR73, para. 25 (http://www.legal-tools.org/doc/ 61711b/); further observing at para. 26: “In the opinion of the Appeal Chamber, the damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by limited intrusion in its territory, particularly when the intrusion oc- Publication Series No. 36 (2022) – page 334 9. Unity and Disunity in International Criminal Justice collected unlawfully, similarly, it has emphasised the need to “balance the fundamental rights of the accused with the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”. 60 Accordingly, and in an approach 60 curs in default of the State’s co-operation”. For other factors drawn from national and regional human rights practice, see, for example, ICTY, Prosecutor v. Mrkšić et al., Trial Chamber, Decision on the Motion for Release by the Accused Slavko Dokmanović, 22 October 1997, IT-95-13a-PT, para. 57 (http://www.legal-tools.org/doc/a13331/); ICTY, Prosecutor v. Simić et al., Trial Chamber, Decision Stating Reasons for Trial Chamber’s Order of 4 March 1999 on Defence Motion for Evidentiary Hearing on the Arrest of the Accused Todorović, 25 March 1999, IT-95-9 (http://www.legal-tools.org/doc/eb750d/); ICTR, Prosecutor v. Barayagwiza, Appeals Chamber, Decision, 3 November 1999, ICTR-97-19-AR72 (http://www.legal-tools.org/doc/ee7411/); ICTR, Prosecutor v. Ngirumpatse, Trial Chamber, Decision on the Defence Motion challenging the Lawfulness of the Arrest and Detention and seeking Return or Inspection of Seized Items, 10 December 1999, ICTR-97-44-I, para. 56 (http://www.legal-tools.org/doc/4cec3f/); ICTR, Prosecutor v. Kajelijeli, Trial Chamber, Decision on the Defence Motion concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing, 8 May 2000, ICTR-98-44-I, para. 34 (http://www.legaltools.org/doc/ccb6d1/); ICTR, Prosecutor v. Nzirorera, Trial Chamber, Decision on the Defence Motion challenging the Legality of the Arrest and Detention of the Accused and requesting the Return of Personal Items Seized, 7 September 2000, ICTR-98-44-T, para. 27 (http://www.legal-tools.org/doc/c00858/). See also ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Lubanga, Appeals Chamber, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, ICC-01/04-01/06-772, paras. 30, 39 (http://www.legal-tools.org/doc/1505f7/). ICTY, Prosecutor v. Brđanin, Trial Chamber, Decision on the Defence “Objection To Intercept Evidence”, 3 October 2003, IT-99-36-T, paras. 61–62 (‘Brđanin Decision on Intercept Evidence’) (http://www.legal-tools.org/doc/7efabf/), citing the approach of the ICTY Appeals Chamber in Prosecutor v. Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, see supra note 59. See also ICTY, Prosecutor v. Karadžić, Trial Chamber, Decision on the Accused’s Motion to Exclude Intercepted Conversations, 30 September 2010, IT-95-5/18-T, para. 7 (http://www.legal-tools.org/doc/b6b12b/); ICTY, Prosecutor v. Haraqija and Morina, Trial Chamber, Decision on Morina and Haraqija Second Request for a Declaration of Inadmissibility and Exclusion of Evidence, 27 November 2008, IT-04-84R77.4, para. 12 (‘Decision on Morina and Haraqija Request’) (http://www.legal-tools.org/ doc/83862d/); ICTY, Prosecutor v. Blagojević and Jokić, Trial Chamber, Decision on the Admission into Evidence of Intercept-Related Materials, 18 December 2003, IT-02-60-T, para. 15 (http://www.legal-tools.org/doc/646db6/); ICTY, Prosecutor v. Brđanin and Talić, Trial Chamber, Order on the Standards Governing the Admission of Evidence, 15 February 2002, IT-99-36-T, para. 11 (http://www.legal-tools.org/doc/005043/); ICTY, Prosecutor v. Kordić and Čerkez, Trial Chamber, Transcript, 2 February 2000, IT-95-14/2-T, at p. 13694 (http://www.legal-tools.org/doc/298d4d/); ICTY, Prosecutor v. Delalić et al., Trial Chamber, Decision on the Motion of the Prosecution for the Admissibility of Evidence, 19 January 1998, IT-96-21-T, para. 16 (http://www.legal-tools.org/doc/51dec6/). Publication Series No. 36 (2022) – page 335 Philosophical Foundations of International Criminal Law: Legally-Protected Interests followed by the ICC, the fact that evidence was obtained in breach of national law, even constituting a breach of State sovereignty, has not, in and of itself, led to the exclusion of evidence absent a qualitative assessment. 61 Moreover, pragmatic realities may render recourse to ordinary domestic procedures unfeasible in the execution of its mandate in circumstances where the authorities themselves are under investigation. 62 In sum, the notion of the oneness of humanity and an international criminal court’s mandate to act on behalf of the international community appears to provide a key rationale for why the ICC was created. Indeed, just as the Nuremberg, Tokyo and later ad hoc Tribunals would not have come to pass without reliance, in part, on the idea of a collective humanity, the ICC can be thought of as the cumulative effect of that concept of ‘unity’ having been put into practice by its predecessors. International criminal justice is also not constrained by the Rome Statute and the progressive development of the law, whether by treaty or custom, may continue to evolve in response to the ever-pressing implications of ‘unity’. 63 At the same time, while the idea of ‘unity’ has appeared in certain discretionary assessments, it perforce has had more limited impact on the operation of the jurisdic61 62 63 Ibid., para. 55; Decision on Morina and Haraqija Request, para. 15, see supra note 60; ICTY, Prosecutor v. Naletilić and Martinović, Appeals Judgement, 3 May 2006, IT-98-34-A, para. 238 (http://www.legal-tools.org/doc/94b2f8/); ICTY, Prosecutor v. Delalić et al., Trial Chamber, Decision on The Tendering of Prosecution Exhibits 104 - 108, 9 February 1998, IT-96-21-T, para. 20 (http://www.legal-tools.org/doc/a26c99/). See also Brđanin Decision on Intercept Evidence, paras. 56 and 61, see supra note 58; ICC, Situation in the Democratic Republic of the Congo, Prosecutor v. Lubanga, Pre-Trial Chamber, Decision on the Confirmation of the Charges, 29 January 2007, ICC-01/04-01/06-803-tEN, paras. 61, 84 (http:// www.legal-tools.org/doc/b7ac4f/); ICC, Situation in the Central African Republic, Prosecutor v. Bemba et al., Appeals Chamber, Judgment on the appeals of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Jean-Jacques Mangenda Kabongo, Mr Fidèle Babala Wandu and Mr Narcisse Arido against the decision of Trial Chamber VII entitled “Judgment pursuant to Article74 of the Statute”, 8 March 2018, ICC-01/05-01/13-2275-Red, para. 280 et seq. (http://www.legal-tools.org/doc/56cfc0/). Brđanin Decision on Intercept Evidence, para. 56, see supra note 60: “The Trial Chamber acknowledges that there are instances when it is not realistic or practical to request permission to conduct covert interceptions. Therefore, even if obtained without legal authority, or in contravention to existing law, this Trial Chamber acknowledges the principle that there may be exceptional circumstances where it is impossible to obtain legal approval of covert surveillance, for example, when the surveillance is targeted at the body from which permission is to be given”, and at para. 61: “in situations of armed conflict, intelligence which may be the result of illegal activity may prove to be essential in uncovering the truth; all the more so when this information is not available from other sources”. Article 10, ICC Statute, see supra note 8. Publication Series No. 36 (2022) – page 336 9. Unity and Disunity in International Criminal Justice tional regime. 64 For example, it cannot override the parameters of the Court’s competence by providing it jurisdiction to act on the basis of public conscience, moral outrage or a norm’s peremptory character. 65 Thus, even if the ICC’s consciousness is directed towards the oneness of humanity and universality, as a judicial institution inculcating the rule of law, it cannot but eschew ultra vires action that is beyond the powers conferred upon it. Instead, what appeals to the concept of ‘unity’ can do in this context is to demonstrate the moral incongruity of such limitations (set against the rationale of the oneness of humanity) and galvanise public opinion in order to mobilise States to voluntarily adhere to the Statute or for the Security Council to refer situations otherwise outside its jurisdictional scope. 66 In64 65 66 See Leena Grover, Interpreting Crimes in the Rome Statute of the International Criminal Court, Cambridge University Press, 2014, pp. 199–202, arguing in view of general rules of treaty interpretation that “‘object and purpose’ and the idea of effective interpretation are to be read down to exclude considerations of collective goals such as ending impunity or securing peace and world order”. Cf. Kreß, 2019, pp. 20–25, see supra note 56. As the ICJ has emphasised, “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” (ICJ, East Timor (Portugal v. Australia), Judgment, 30 June 1995, para. 29 (http://www.legal-tools.org/doc/c7cf7e/)); “the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties” (ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Judgment, 3 February 2006, para. 125 (http://www.legal-tools.org/doc/1d7775/)); “[a] jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application” (ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, 3 February 2012, para. 95 (http://www.legal-tools.org/doc/674187/)). See, similarly, European Court of Human Rights (‘ECtHR’), Al-Adsani v. United Kingdom, Judgment, 21 November 2001, Application No. 35763/97, paras. 61 and 66 (http://www.legal-tools.org/ doc/9c81a2/); Myanmar/Bangladesh Decision, para. 49, see supra note 57; Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa, para. 213, see supra note 56. On incongruity, see, similarly, Christian Tomuschat, “Crimes Against the Peace and Security of Mankind and the Recalcitrant Third State”, in Yoram Dinstein and Mala Tabory (eds.), War Crimes in International Law, Martinus Nijhoff Publishers, 1996, p. 42, noting the inherent contradiction arising from the pacta tertiis rule whereby, “by committing the applicability of an international penal code to the discretion of every individual State, the international community grants any potential wrongdoer, de jure and not only de facto, the privilege of evading the law that is meant to protect the common interest of humanity”. Cf. Thomas Nagel, “The Problem of Global Justice”, in 33(2) Philosophy and Public Affairs (2005), pp. 113-147, arguing that the most likely path toward some version of global justice is through the creation of global structures of power that are initially tolerable to the inter- Publication Series No. 36 (2022) – page 337 Philosophical Foundations of International Criminal Law: Legally-Protected Interests deed, the existence of a permanent standing international criminal court with potential universal vocation appears to have increased the routineness with which demands for accountability are made, whether by victims associations, civil society organisations, States and international organisations. 67 Even if such appeals remain only inconsistently met, this represents a significant change in public discourse. 68 9.4. ‘Unity’ as a Rationale for the Jurisdiction Ratione Materiae of the ICC and Its Role in Restoring and Maintaining Social Order What social function does the ICC serve? Even more explicit as a rationale, one of the main expressed purposes for the international community to create an international criminal jurisdiction of potential global reach was the affirmation, after World War II, that failure to hold persons accountable for massive crimes not only shocked the conscience of humanity, but was directly linked with the question of international peace and security. When the UN General Assembly, three weeks after the International Military Tribunal at Nuremberg rendered its judgment on 1 October 1946, called “as a matter of primary importance” for the formation and codification of principles recognised in the charter of the Nuremberg Tribunal and in the judgment of the Tribunal, it was not merely rhetorical that it called such a general code “offences against the peace and security of mankind”. 69 The UN 67 68 69 ests of the most powerful current nation states, but will over time be subjected to pressures to make their exercise more just and legitimate. As former IRMCT President Theodor Meron has remarked, as the result of work by international criminal courts such as the ICTY and ICTR, “there is an ever-increasing expectation in communities around the world that where atrocities are committed in violation of international law, accountability shall follow. This is a profound change from just a quarter of a century ago”, while acknowledging that international criminal justice is “still very much in its infancy, and it is in a highly vulnerable stage of development at present […] facing something of a period of contraction […] after a remarkable period of expansion”; IRMCT, “President Meron speaks at Security Council open debate on international law and the rule of law”, 18 May 2018; United Nations Security Council 8262nd Meeting Record, UN Doc. S/PV.8262, 17 May 2018. See below notes 160-164 and accompanying text. Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, UN Doc. A/RES/95(I), 11 December 1946 (http://www.legal-tools.org/doc/ bb7761/); Formulation of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal, UN Doc. A/RES/177(II), 21 November 1947 (http:// www.legal-tools.org/doc/57a28a/). See also Draft Code of Offences Against the Peace and Security of Mankind – Report by J. Spiropoulos, Special Rapporteur, UN Doc. A/CN.4/25, 26 April 1950, paras. 35-36 (http://www.legal-tools.org/doc/3d7c4d/); Report of the Interna- Publication Series No. 36 (2022) – page 338 9. Unity and Disunity in International Criminal Justice Secretary-General, in his Supplementary Report on the Work of the Organization of 24 October 1946, similarly declared that in the “interests of peace, and in order to protect mankind against future wars, it will be of decisive significance to have the principles which were employed in the Nuremburg trials […] made a permanent part of the body of international law as quickly as possible”. 70 It would not have been lost on the author of these sentiments that a similar rationale had informed discussions around accountability after World War I. 71Consistent with the idea that it is the function of law to protect society, international justice was seen as a function of global order for the preservation of global society. 72 It bears emphasising that this statement does not carry within it any value judgment on the character of the global order: it is neutral to the question whether the current system (or the international system as it existed at the end of World War II) is in fact stable, just or necessary. It does not answer, thus, the broader question whether, in part, it is those very structures of international society (unequal distribution of power, economic hegemony, exploitative trading 70 71 72 tional Law Commission covering its second session, 5 June - 29 July 1950, UN Doc. A/1316, 29 July 1950, para. 149 (http://www.legal-tools.org/doc/be570a/). Secretary-General’s Oral Supplementary Report to the General Assembly, UN Doc. A/65/Add.1, 24 October 1946 (http://www.legal-tools.org/doc/ecea1b/). See, for example, Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace, London, His Majesty’s Stationery Office, 16 June 1919, p. 30 (Part VII/II, Penalties, relative to articles 227-230 of the Treaty of Versailles) (available in HathiTrust Digital Library): The Allied and Associated Powers […] regard the punishment of those responsible for bringing these calamities on the human race as essential on the score of justice. They think it not less necessary as a deterrent to others who, at some later date, may be tempted to follow their example. The present Treaty is intended to mark a departure from the traditions and practices of earlier settlements which have been singularly inadequate in preventing the renewal of war. The Allied and Associated Powers indeed consider that the trial and punishment of those proved most responsible for the crimes and inhuman acts committed in connection with a war or aggression, is inseparable from the establishment of that reign of law among nations which it was the agreed object of the peace to set up. See, similarly, Hersch Lauterpacht, The Development of International Law by the International Court, Grotius Publications, Cambridge, 1982 (1958), pp. 3–4, stating “the primary purpose of the International Court (referring to the PCIJ and ICJ) […] lies in its function as one of the instruments for securing peace in so far as this aim can be achieved by law”, while cautioning that the “degree of achievement of this end by an international, as indeed by any other, court is dependent upon the state of political integration of the society whose law it administers”. Publication Series No. 36 (2022) – page 339 Philosophical Foundations of International Criminal Law: Legally-Protected Interests practices, democratic deficits, discriminatory ideology, technological barriers, and so on) that precipitate instability in the system. 73 From early on, the International Law Commission (‘ILC’) similarly considered the desirability and possibility of establishing an international criminal jurisdiction in terms of the broad community interest in preserving international peace and security. Thus, the report of Special Rapporteur Alfaro stated: The community of States is entitled to prevent crimes against the peace and security of mankind and crimes against the dictates of the human conscience, including therein the hideous crime of genocide. If the rule of law is to govern the community of States and protect it against violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction. The community of States realizes that another war will mean the destruction of civilization. It has not only a right but also a duty to make sure that civilization – both material and moral – is not destroyed. The community of States has the same right every community of individuals has to protect its existence from crime and provide for its own security through the organization of a permanent system of penal justice. 74 73 74 See, for example, Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge University Press, 2009, pp. 56–61, discussing the inequalities tolerated by international law. On the impact of economic inequality, see generally Thomas Pogge, “Recognized and Violated by International Law: The Human Rights of the Global Poor”, in Leiden Journal of International Law, 2005, vol. 18, no. 4, pp. 717–45, discussing the implications of Article 28 of the UDHR: “international law […] establishes and maintains institutional structures that greatly contribute to violations of these human rights: fundamental components of international law systematically obstruct the aspirations of poor populations for democratic self-government, civil rights, and minimal economic sufficiency. And central international organizations, such as the WTO, the IMF, and the World Bank, are designed so that they systematically contribute to the persistence of severe poverty”. See also Frédéric Mégret, “What Sort of Global Justice is ‘International Criminal Justice’?”, in Journal of International Criminal Justice, 2015, vol. 13, no. 1, pp. 80–81 and 96, on the ambivalence of ICL to questions of economic justice and climate change that are otherwise so prominent in the work of global justice scholars. Report on the Question of International Criminal Jurisdiction by Ricardo J. Alfaro, Special Rapporteur, UN Doc. A/CN.4/15 and Corr.1, 3 March 1950, paras. 136–37 (‘Alfaro Report’) (http://www.legal-tools.org/doc/352f0d/); Report of the International Law Commission covering its second session, 5 June - 29 July 1950, 1950, para. 135, see supra note 69. Publication Series No. 36 (2022) – page 340 9. Unity and Disunity in International Criminal Justice As to the meaning of “offences against the peace and security of mankind”, the ILC’s then Special Rapporteur Spiropoulos on the Draft Code suggested that it was “intended to refer to acts which, if committed or tolerated by a State, would constitute violations of international law and involve international responsibility. The main characteristic of the offences in question is their highly political nature. They are offences which, on account of their specific character, normally would affect the international relations in a way dangerous for the maintenance of peace”. 75 This category was distinguished from other crimes involving international elements, such as piracy, trafficking in persons and goods, slavery, counterfeiting currency and protection of submarine cables. 76 A similar differentiation reappeared in debates within the Ad Hoc Committee for the creation of the ICC in 1995, in response to the question of whether the Court’s jurisdiction would be “limited to the most serious crimes that might threaten international peace and security” or would address the broader category of other treaty-based crimes. 77 This distinction was also retained in the Preamble of the Rome Statute, which refers to “the most serious crimes of concern to the international community as a whole”, whose impact “threaten[s] the peace, security and well-being of the world”. 78 The proscription of genocide, crimes against humanity, war crimes and aggression have been identified by international criminal courts as representing peremptory norms of international law. 79 And as the ILC has observed in the context of its draft articles on State responsibility, the 75 76 77 78 79 Draft Code of Offences Against the Peace and Security of Mankind, 1950, para. 35, see supra note 69 (emphasis in the original); Report of the International Law Commission covering its second session, 5 June - 29 July 1950, 1950, para. 149, see supra note 69. Ibid. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22, 6 September 1995, para. 120, discussing in the context of the power of the UNSC to refer situations (http://www.legal-tools.org/doc/b50da8/). Preamble, ICC Statute, paras. 3 and 4; the phrase “the most serious crimes of international concern” is recalled in Articles 1 and 5 of the Statute, see supra note 8. The same rational appears reflected in the authority of the Security Council, acting under Chapter VII of the UN Charter, to both refer situations to the Court and request a deferral under Article 13(b) and 16, as a consequence of the perceived impact (positive or negative) of the ICC’s activities on international peace and security. Furundžija Trial Judgment, para. 154, see supra note 38; ICTY, Prosecutor v. Kupreškić et al., Trial Chamber, Judgement, 14 January 2000, IT-95-16-T, para. 520 (“Kupreškić Trial Judgment”) (http://www.legal-tools.org/en/doc/5c6a53/); Bashir Jordan Appeal, para. 123, see supra note 48. Publication Series No. 36 (2022) – page 341 Philosophical Foundations of International Criminal Law: Legally-Protected Interests obligations arising from peremptory norms “prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”. 80 These phrases appear intended to reflect the idea that these forms of conduct “threaten human existence so fundamentally” that they necessitate criminalisation, 81 to protect both national and international orders. 82 These are “international crimes which offend against the public order of the international community”. 83 The propounded purpose of the law’s application, thus, is to penalise behaviour though the international community’s own norms, to protect its own legal values and interests. 84 And one of the ways such a system is intended contribute to “the peace, security and well-being of the world” is through deterrence and the reconstitution of the rule of law. 85 Such rationale has often been repeated by international criminal courts and tribunals. 86 80 81 82 83 84 85 Report of the International Law Commission on the work of its fifty-third session, 23 April 1 June and 2 July - 10 August 2001, UN Doc. A/56/10, p. 112 (https://www.legaltools.org/doc/d197cb/). Tallgren, 2002, p. 565, see supra note 16, in discussing possible justifications for ICL. Triffterer, Bergsmo and Ambos, 2016, at mn. 9, see supra note 27; see also at mn. 11 discussing the wider implications of the protected value of ‘the peace, security and well-being of the world’ to denote more than the negative definition of peace as the absence of war. Arthur Watts, “The legal position in international law of heads of states, heads of governments and foreign ministers”, in The Hague Academy of International Law, Recueil des Cours, 1994, vol. 247, pp. 82-84. See also Luban, 2004, pp. 87–88, see supra note 36, arguing that crimes against humanity pose a universal threat that all humankind shares an interest in repressing, because they assault one aspect of being human – our character as political animals – and our existential need to live socially in groups with other human beings. Otto Triffterer, “Preliminary Remarks: The Permanent International Criminal Court – Ideal and Reality”, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd edition, C.H. Beck, 2008, p. 22, mn. 17; see also mn. 20 et seq. See Kupreškić Trial Judgement, para. 519, see supra note 79: “norms of international humanitarian law [...] lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a ‘legal interest’ in their observance and consequently a legal entitlement to demand respect for such obligations”, Joint Concurring Opinion of Judges EboeOsuji, Morrison, Hofmański and Bossa, paras. 54, 201-204, see supra note 56; Kreß, 2019, pp. 12-20, see supra note 56. Preamble, ICC Statute, para. 5, see supra note 8. See also Alfaro Report, para. 121, see supra note 74, observing: “The cynic and the skeptic will surely remark that wars are not stopped by means of international tribunals and penal codes. Perhaps that is true, up to a certain point. In the municipal organization it may be observed also that there are murderers and thieves despite the fact that there are criminal courts and penal codes, but only God knows how many murders and robberies are not committed precisely because there are Publication Series No. 36 (2022) – page 342 9. Unity and Disunity in International Criminal Justice For the ICC, the link between individual criminal accountability and the peace and security mandate of the UN Security Council through the referral (and deferral) mechanism was seen early on as one of the primary purposes for creating a permanent institution for the most serious crimes of international concern. 87 The crime of aggression, a crime against the peace and security of humanity, involving a finding of a manifest violation of the UN Charter, quintessentially operates under the rationale of the maintenance and preservation of social order. 88 Moreover, to the extent that the pursuit of global order through justice was exercised solely under the authority of the victorious powers in the 1940s and Security Council in the 1990s, the Rome Statute diffuses this 86 87 88 judges and penalties”. See also Tomuschat, 1996, p. 42, see supra note 66: “Penal law is one of the remedies suitable to ensure effective compliance with the law, and should be at the disposal of the international community for the purpose of deterrence and retribution”. See, for example, ICTY, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 72, see supra note 38: “In adopting resolution 827, the Security Council established the International Tribunal with the stated purpose of bringing to justice persons responsible for serious violations of international humanitarian law in the former Yugoslavia, thereby deterring future violations and contributing to the reestablishment of peace and security in the region”; ICTY, Prosecutor v. Delalić et al., Trial Chamber, Judgment, 16 November 1998, No. IT-96-21-T, para. 405 (https://www.legaltools.org/doc/d09556/), referring to the “objective of maintaining a balance between the preservation of justice and fairness towards the accused and taking into account the preservation of world order”; Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest, para. 25, see supra note 59: “Universally condemned offences are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts”; Joint Concurring Opinion of Judges EboeOsuji, Morrison, Hofmański and Bossa, para. 54, see supra note 56: “The ICC exercises its jurisdiction in no other circumstance than on behalf of the international community– represented under the Rome Statute or the UN Charter as the case may be–for the purpose of the maintenance of international peace and security according to the rule of international law.”. Report of the International Law Commission on its work on its forty-sixth session, 2 May22 July 1994, UN Doc. A/49/10, 2 September 1994, paras. 65–66 and commentary on “Action by the Security Council”, draft Article 23, p. 84 (http://www.legal-tools.org/doc/ f73459/); Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, paras. 120–26, see supra note 77. Article 8bis, ICC Statute, see supra note 8. Publication Series No. 36 (2022) – page 343 Philosophical Foundations of International Criminal Law: Legally-Protected Interests function, given the possibility for State Party referrals and proprio motu action under the rationale of upholding shared community interests. 89 This approach is consistent with the designation of such crimes of exception gravity as posing a threat to peaceful co-existence as such. 90 In line with the dicta of the International Court of Justice in Barcelona Traction 91 and the approach of the ILC in Article 48 of its Draft Articles on State Responsibility, 92 all States have a legal interest in invoking responsibility and ensuring compliance with the obligations arising from the universal proscription of such crimes. 93 At the institutional level then, among the goals criminal courts are intended to perform are certain community values related to the restoration and maintenance of social order. In the case of the ICC, by addressing the most serious crimes of international concern, the Court is intended to contribute towards general deterrence; and by holding specific individuals to account, the judicial process aims to avert the collective attribution of blame to entire groups, thereby fostering capacities towards reconcilia- 89 90 91 92 93 On community interests, see, generally, Bruno Simma, “From Bilateralism to Community Interests in International Law”, in The Hague Academy of International Law, Recueil des cours, 1994, vol. 250, p. 217. Preamble, ICC Statute, para. 3, see supra note 8. ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962), Second Phase, Judgment, 5 February 1970, paras. 33–34 (http://www. legal-tools.org/doc/75e8c5/). ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, pp. 33, 110-112, 116 and 126-128 (http://www.legal-tools.org/doc/10e324). Under Article 48 of the Draft Articles, entitlement to invoke the responsibility of another State arises where the obligation breached “is owed to a group of States including that State, and is established for the protection of a collective interest of the group” or “is owed to the international community as a whole”. See ICJ, Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 28 May 1951, p. 12 (http://www.legaltools.org/doc/52868f/): “In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the parties, the foundation and measure of all its provisions”. See, similarly, Furundžija Trial Judgment, para. 151, see supra note 38; Kupreškić Trial Judgment, para. 519, see supra note 79; Bashir Jordan Appeal, para. 123, see supra note 48. Publication Series No. 36 (2022) – page 344 9. Unity and Disunity in International Criminal Justice tion. 94 Even if the application of such norms cannot be expected by itself to bring about social order, its re-imposition and restoration, particularly after the chaos and upheaval unleashed by periods of destructive mayhem, can serve important psychological effects: in bringing about a recovery of normalcy and in the restoration of social values directed at the vilification, and not glorification, of violence. Traumatic experiences, particularly where shared across large segments of society, can destabilise peoples’ basic beliefs about the world (as a reasonably predictable and safe place) and damage their worldview. The reestablishment of the ordered schemata of society in this context can function as a cornerstone for recovery from trauma. 95 Conversely, it may be questioned whether the foisting of such weighty societal objectives on an international court is in fact appropriate or feasible. 96 The mantra of deterrence through threat of criminal prosecution might serve as substitute, rather than supplement, for intervention, serving to assuage the shame of political inertia to stop the carnage. 97 The 94 95 96 97 See discussion in Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?”, in American Journal of International Law, 2001, vol. 95, no. 1, pp. 7–31; Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia, Oxford University Press, 2018, pp. 103-107. Cf. Mégret, 2015, p. 90, see supra note 73: “the choice of indictees is always seen as […] reflecting some distributive allocation of blame between different national or sub-national groups”; Mirjan Damaška, “Reflections on Fairness in International Criminal Justice”, in Journal of International Criminal Justice, 2012, vol. 10, no. 3, pp. 619–20: “pure individual responsibility is often intimately intertwined with its collective counterpart […] judgments of international criminal courts can effectively adjudicate the responsibility of a state”. Dinka Corkalo Biruški, Dean Ajduković and Ajana Löw Stanić, “When the world collapses: Changed worldview and social reconstruction in a traumatized community”, in European Journal of Psychotraumatology, 2014, vol. 5, p. 5. See Mirjan Damaška, “What is the Point of International Criminal Justice?”, in ChicagoKent Law Review, 2008, vol. 83, no. 1, p. 331, observing “objectives related to peace and security – such as stopping an ongoing conflict – that are far removed from the normal concerns of national criminal justice”. See also George P. Fletcher and Jens David Ohlin, “The ICC – Two Courts in One?”, in Journal of International Criminal Justice, 2006, vol. 4, no. 3, pp. 428–33, questioning the conceptual operational linkage between the political role of the UN Security Council and the criminal justice functions of the ICC. More generally on the debate whether the worthiness of the ICL project is based more on faith than on facts, see Carsten Stahn, “Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?”, in Leiden Journal of International Law, 2012, vol. 25, no. 2, pp. 251–82. See, similarly, Sarah M.H. Nouwen, “Justifying Justice”, in Crawford and Koskenniemi (eds.), 2012, p. 343, see supra note 7: “For the Security Council, international criminal tribunals are instruments of therapeutic governance, providing an acceptable compromise be- Publication Series No. 36 (2022) – page 345 Philosophical Foundations of International Criminal Law: Legally-Protected Interests impact of international courts on ongoing crimes, in this context, might represent little more than subtle psychological dissuasion – through the distant (and uncertain) prospect of future apprehension – rather than the more concrete risks of swift arrest, severe punishment, and the disruption of criminal activities. More generally, it might be held that the criminal law process, when applied to the indescribably complex social malaise that underlies mass societal violence, itself masks social reality, by privatising responsibility through the lens of individual guilt while avoiding larger background questions concerning overall systemic inequalities and absolving collective agency. 98 Or such avowedly consequentialist goals to restore social order might expose the criminal process for its ambivalence towards the risk that it might descend into a show trial, staged to advance certain historical, political and pedagogic objectives. 99 Or international law might be admitted to serve a functional role in facilitating the pursuit of State interests, but may be said to be marginal to larger questions of global order where national interest is directly affected or to moments of great political crisis. 100 If we accept that maintaining and restoring social order does represent one of the primary intended purposes for creating the Court, the inability of the ICC to exercise its jurisdiction with respect to all such crimes committed anywhere throughout the world, due to the limitations of its treaty-based jurisdiction or its resulting reliance on UN Security Council 98 99 100 tween despicable apathy and authorisation of military interventions that UN members are unwilling or unable to carry out: if not peace, then justice”. Tallgren, 2002, p. 594, see supra note 16; Osiel, 2005, p. 1812, see supra note 16; Drumbl, 2007, pp. 39–41 and 197–204, see supra note 16; Kennedy, 2002a, pp. 109–10, see supra note 42; Kennedy, 2002b, p. 25, see supra note 42. Arendt, 1965, see supra note 36; Martti Koskenniemi, “Beyond Impunity and Show Trials”, in Max Plank Yearbook of United Nations Law, 2002, vol. 6, pp. 1–35. Morgenthau, Thompson, 1985, pp. 112-113, see supra note 31: “The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations concerned to honor their obligations under international law […] The problem of enforcement becomes acute, however, in that minority of important and generally spectacular cases […] in which compliance with international law and its enforcement have a direct bearing upon the relative power of the nations concerned. In those cases […] considerations of power rather than of law determine compliance and enforcement”. See also Gerry Simpson, “International law in diplomatic history”, in Crawford and Koskenniemi, 2012, pp. 25–26 and 43–44, see supra note 7, framing the relationship of international law to the practice of international diplomacy around a set of images, including one that scrutinises the idea of international law as a body of principles that might appear virtuous yet marginal. Publication Series No. 36 (2022) – page 346 9. Unity and Disunity in International Criminal Justice referrals, would also tend to suggest that international peace and security may be negatively impacted by the absence of accountability. Such inconsistency has the further potential to undermine the legitimacy of international criminal courts and to support arguments based on perceived or actual selectivity, instrumentalisation, and structural bias – tending towards disunity, whether directed at the ICC itself or other enabling actors. 101 As Drumbl observes, “the expressive value of law and punishment is weakened by selectivity and indeterminacy in the operationalization of law and punishment, as well as the political contingency of the entire enterprise”. 102 These questions arise routinely at the ‘situation’ level (where and in respect of when an investigation is opened) and at the ‘case’ stage (who is investigated or prosecuted for what). But if we are looking to identify the overall social function the ICC is designed to serve, linked to the concept of ‘unity’ as a rationale for social order is the scope of the Court’s jurisdiction and the potential this has, relative to its comprehensiveness, to either uphold certain universally protected values, or to lead instead to fragmentary and incoherent responses that tend to undermine the relevance of international criminal justice to global order. 9.5. ‘Unity’ as an Organising Principle for Enforcement How can an international criminal court be effective? The last theme of the chapter questions how the ICC, bereft of policing powers, is supposed to function. At the community level, the imprimatur of ‘unity’ is evident in the framework required for the enforcement of the Court’s warrants and orders. As is well known, under Part 9 of the ICC Statute, the entire apparatus of co-operation necessary to give effect to coercive measures is delegated back to States, who undertake to act on the Court’s behalf. Without the concerted co-operation from States for such essential processes as the arrest of alleged perpetrators, the preservation of evidence, the execution of confiscatory orders, the protection of vulnerable witnesses, or the enforce101 102 See, for example, UN Secretary-General, “Honouring Geneva Conventions, SecretaryGeneral Says Debate ‘No Longer between Peace and Justice but between Peace and What Kind of Justice’”, 26 September 2009, SG/SM/12494-L/T/4417-HR/5002, stating: “there remain serious challenges in pursuing accountability. Some situations which, by any objective analysis, would have warranted some form of action by the Security Council, have faced serious obstacles or languished entirely. This has eroded the Council’s credibility. There is a need to address this problem, and to bring some consistency to the effort”. Mark A. Drumbl, “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity”, in Northwestern University Law Review, 2005, vol. 99, no. 2, p. 593. Publication Series No. 36 (2022) – page 347 Philosophical Foundations of International Criminal Law: Legally-Protected Interests ment of sentences, the entire judiciary machinery of the ICC will grind to a halt. So vital is this responsibility to the Court’s functions and powers that failure to perform it carries the risk of a judicial ruling of non-compliance and an invocation of that State’s international responsibility. However, this accountability scheme can only work if the international community, represented in the first instance by the Assembly of States Parties or the UN Security Council, acts to give effect to the rulings of the Court. Much like the preventative principle expressed under the threat of united reprisal action under collective security arrangements, the system is predicated on the successful operation of a covenant of undertakings between the individual State and the collective. In this way, under a scheme of shared responsibilities, States are intended to “guarantee lasting respect for and the enforcement of international justice”. 103 Practice, nonetheless, indicates that States do not always uphold the decisions of the Court: co-operation, irrespective of its overall trend, is not automatic, consistent, nor predictable. 104 This has been particularly so in cases involving incumbent senior government officials or powerful nonState actors. In a number of such cases, suspects have been allowed to evade capture, 105 while physical and testimonial evidence has been lost, interfered with or destroyed. 106 Even if States co-operate on some request 103 104 105 106 Preamble, ICC Statute, para. 11, see supra note 8. ‘Unity’ as a principle for enforcement of international criminal justice can also be thought of in view of the overarching ‘systemwide’ goal of the Statute: to establish a complementary relationship between national authorities, who retain their primary responsibilities, and the ICC, in order to combat these crimes. This relationship is reciprocal, since without national authorities, the ICC will be unable to act; but also conversely, without the catalytic presence of the ICC, it is less likely that national authorities will act. As such, the ICC Statute acts as both a criminal procedural code for the institution itself and a compliance-inducing mechanism for States more generally. See, generally, Rod Rastan, “Can the ICC function without State compliance?”, in Margaret M. deGuzman and Valerie Oosterveld (eds.), The Elgar Companion to the International Criminal Court, Edward Elgar, 2020, pp. 147-179. See, for example, Bashir South Africa Decision, see supra note 48; Decision on the noncompliance by Libya with requests for co-operation by the Court and referring the matter to the United Nations Security Council, 2014, see supra note 49. See, for example, ICC, Situation in the Central African Republic, Prosecutor v. Bemba et al., Trial Chamber, Judgment pursuant to Article 74 of the Statute, 19 October 2016, ICC-01/0501/13-1989-Red (http://www.legal-tools.org/doc/fe0ce4/); ICC, Situation in the Republic of Kenya, Prosecutor v. Ruto and Sang, Trial Chamber, Decision on Prosecution Request for Admission of Prior Recorded Testimony, 19 August 2015, ICC-01/09-01/11-1938-CorrRed2, para. 60 (http://www.legal-tools.org/doc/d18042/); ICC, Situation in the Republic of Kenya, Prosecutor v. Ruto and Sang, Trial Chamber, Decision on Defence Applications for Publication Series No. 36 (2022) – page 348 9. Unity and Disunity in International Criminal Justice but not others, such irregularity can critically undermine the effectiveness of the Court’s work and the viability of its cases. 107 To date, despite numerous notification of non-compliance to the ASP and UN Security Council where a State’s failure to co-operate has prevented the Court from exercising its functions and powers, no remedial action has been taken by the collective community of States. 108 Clearly, without unified and collective remedies invoking State responsibility, the collective design will fail. 109 As Damaška observes, “international criminal courts […] lack inherent enforcement powers but must process crimes of unusual complexity, and still aspire to realize goals more ambitious than their powerful national counterparts. The predictable consequence of this state of affairs is the likelihood of discrepancies between promise and achievement”. 110 The disparity between norms and their enforcement in practice is a recurrent theme in international law. 111 In the absence of an international enforcement agent, the decisions of international courts must be implemented indirectly by States, who serve as the proximate source of compliance. States may comply on a voluntary basis or may otherwise be induced or coerced to do so by third States. But because decisions on these choices 107 108 109 110 111 Judgments of Acquittal, Reasons of Judge Fremr, 5 April 2016, ICC-01/09-01/11-2027-RedCorr, paras. 147–48 (http://www.legal-tools.org/doc/6baecd/); Reasons of Judge Eboe-Osuji, paras. 2 and 8; Dissenting Opinion of Judge Herrera Carbuccia, ICC-01/09-01/11-2027AnxI, para. 30 (http://www.legal-tools.org/doc/2bc8b5/). ICC, Situation in the Republic of Kenya, Prosecutor v. Kenyatta, Trial Chamber, Decision on the Prosecution’s revised co-operation request, 29 July 2014, ICC-01/09-02/11-937, para. 47 (http://www.legal-tools.org/doc/9e7a87/); ICC, Situation in the Republic of Kenya, Prosecutor v. Kenyatta, Trial Chamber, Second decision on Prosecution’s application for a finding of non-compliance under Article 87(7) of the Statute, 19 September 2016, ICC-01/0902/11-1037, paras. 16–22 (http://www.legal-tools.org/doc/2f2e43/). For discussion, see Göran Sluiter, “Enforcing Cooperation: Did the Drafters Approach it the Wrong Way?”, in Journal of International Criminal Justice, 2018, vol. 16, no. 2, pp. 383– 402. See Rastan, 2020, pp. 156-157 and 172-175, see supra note 104. Mirjan Damaška, “The International Criminal Court Between Aspiration and Achievement”, in UCLA Journal of International Law and Foreign Affairs, 2009, vol. 14, p. 19. As Berman notes: “It seems to many that the problem is not to discover what the law is, or how to apply it to the particular case, or even whether the existing rule is “satisfactory” or not, but rather how to secure or compel compliance with the law at all. It may be that we have now passed from a great phase of law-making to a period where the focus is not on new substantive law but on how to make existing law effective”; Frank Berman, “Preface”, Hazel Fox and Michael A. Meyer (eds.), Armed Conflict and the New Law Volume II: Effecting Compliance, British Institute of International and Comparative Law, London, 1993, p. xii. Publication Series No. 36 (2022) – page 349 Philosophical Foundations of International Criminal Law: Legally-Protected Interests are guided by numerous policy considerations, amongst which legality is but one element, the notion of impartial and routine observance of international law has encountered deep resistance. 112 The inability of any system to effect regular compliance with its rules raises questions of fundamental importance for judicial institutions. If a court cannot guarantee the enforcement of its decisions, the nature and relevance of the law it applies is brought into doubt. 113 In the field of the law of armed conflict, this mismatch between norms and enforcement has been exacerbated historically by the absence of robust compliance demands on convention members. Traditional formulations governing the conduct of hostilities under Hague and Geneva laws, for example, were drafted under the premise of auto-enforcement via the national laws of signatories. This subjected international regulation to the modalities, interpretation, reservations and effective discretion of each State. Moreover, relevant rules were often formulated in such generalised terms (such as ‘proportionality’ or ‘reasonableness’) that in practice they allowed wide scope for interpretation by those same entities whose operations they aimed to control. 114 Indeed, the exclusion of a serious external sanctioning mechanism was arguably a prerequisite for the adoption of these instruments. Thus, although agreements such as the 1949 Geneva Conventions enjoy almost universal 112 113 114 Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law, Oxford University Press, 2003, p. 60; Rod Rastan, “The Responsibility to Enforce: Connecting Justice with Unity”, in Carsten Stahn and Göran Sluiter (eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, 2008, pp. 165-169. For well-known iterations of this theme, see Thomas Hobbes, Leviathan, Basil Blackwell, Oxford, 1960 (1651), pp. 112–13 and 172–76; John Austin, The Province of Jurisprudence Determined, John Murry, London, 1832, p. 201; Hans Kelsen, Principles of Public International Law (1952), pp. 417–18; H.L.A. Hart, The Concept of Law, 2nd edition, Oxford University Press, 1994, p. 214; George F. Kennan, American Diplomacy 1900-1950, University of Chicago Press, 1985, pp. 95–103. Cf. Ambos, 2013, pp. 300–04, see supra note 37, positing the validity of (international legal) norms based on the material (normative or moral) foundation of their claim of being obligatory, more than on their enforceability by State-like apparatus. Koskenniemi, 2012, p. 49, see supra note 7; André Nollkaemper, “Inside or Out: Two Types of International Legal Pluralism”, in Jan Klabbers and Touko Piiparinen (eds.), Normative Pluralism and International Law: Exploring Global Governance, Cambridge University Press, 2013, pp. 109-115; Richard Collins and Alexandra Bohm, “International Law as Professional Practice: Crafting the Autonomy of International Law”, in Jean d’Aspremont, Tarcisio Gazzini, André Nollkaemper and Wouter Werner (eds.), International Law as a Profession, 2017, pp. 71-78. Publication Series No. 36 (2022) – page 350 9. Unity and Disunity in International Criminal Justice adherence, the record bears out a culture of impunity where investigations and prosecutions, with rare and selective exceptions, simply have not occurred. 115 Negotiating a Statute for a permanent international criminal court with the authority to effectively hold national authorities accountable for their failings was supposed to alter these assumptions by shifting the paradigm from self-scrutiny to supranational accountability. However, while the Court may render binding decisions and invoke an obligation to cooperate where it has jurisdiction, the failure of relevant States to enforce its decisions or to give them proper effect (for example, by remedial action consequent to a notification of non-compliance) undermines the cogency of the system and risks a return to a modified variant of traditional selfregulation. In the present context, it might be said that the normative assumptions underpinning the ICC Statute have not been matched by the required maturity in attendant compliance mechanisms. Instead, a gap has formed between the norms of internationally criminal conduct and their enforcement apparatus. Or it may be said that the ICC sits as an island of substantive ‘unity’ within an ocean of decentralized enforcement structures. 116 This lacuna creates both normative and structural ambiguities: the Court is supranational in authority, yet subnational in its operability since it relies on State co-operation. Thus, as described above, the implementation of international justice remains dependant on the irregular system of national support (including through international organisations) for all its essential enforcement processes. Compliance can of course be influenced by a variety of agents including transnational actors, governmental authorities, national legislative bodies, administrative compliance procedures, and issue linkages. 117Clearly, such processes, if properly aligned, can have significant ca115 116 117 See, generally, Timothy L.H. McCormack and Gerry J. Simpson (eds.), The Laws of War Crimes: National and International Approaches, Kluwer Law International, 1997. The author would like to thank Claus Kreß for this expression. See, generally, Jana von Stein, “The Engines of Compliance”, in Jeffery Dunoff and Mark Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, Cambridge University Press, 2012, pp. 477–501. See also Maja Groff and Sylvia Karlsson-Vinkhuyzen, “The Rule of Law and Accountability: Exploring Trajectories for Democratizing Governance of Global Public Goods and Global Commons”, in Samuel Cogolati and Jan Wouters (eds.), The Commons and a New Global Governance, Edward Elgar Publishing, 2018, recalling, in the context of the rule of law and the domestication of international norms generally, the relevance of democratic governance principles Publication Series No. 36 (2022) – page 351 Philosophical Foundations of International Criminal Law: Legally-Protected Interests pacity to inform and alter behaviour of national decision-making bodies. 118 However, it cannot be said that the compliance regime established by the Rome Statute has fundamentally altered existing frameworks; it instead refers itself back to them. The problem of State compliance is, fundamentally, a problem of ‘unity’. The assumption of such a responsibility requires unity of thought as to the norm that is to be protected. 119 In this instance, international consensus appears to have coalesced around the most basic norms of humanity governing the prevention and repression of atrocities crimes. As explored in Sections 9.3. and 9.4. above, awareness of this fundamental ‘unity’ might suggest that among the broad community interests protected by the Rome Statute are humanity’s essential oneness and upholding global social order. To give effect to those values, however, unity of action is also required. This means that States must so align their national interest with the collective interests of humanity that they would stand ready to take action to uphold shared community values. Conversely, a prevalence of disunity will result in irregularity, unpredictability and the disordering of the overall scheme. 120 In particular, where a recalcitrant State is able to avoid its obligations to ensure compliance with shared community interests, by exploiting divisions within the international community or by bypassing measures aimed at bringing pressure to bear, the collective response will be fatally undermined. Understood in this way, ‘unity’ becomes not just a core principle for the enforcement of the Court’s mandate, but arguably the organising principle upon which the entire machinery of international co-operation and enforcement depends – for without unified collective support in ensuring 118 119 120 which posit that citizens should have a reasonable expectation that laws duly adopted or promulgated are enforced and carry with them the promise of effective access to justice. In the context of the ICC, see, for example, efforts by non-State actors, working through domestic judicial and legislative processes, to seek national enforcement of ICC warrants or to challenge the constitutionality of domestic executive action; on the Bashir case, South Africa Supreme Court of Appeal, Minister of justice and Constitutional Development and Others v. Southern African Litigation Centre and Others, Judgment, 15 March 2016, [2016] ZASCA 17 (http://www.legal-tools.org/doc/d4b22b/); Republic of Kenya Court of Appeal, Attorney General and Others v. Kenya Section of the International Commission of Jurists, Judgment, 16 February 2018, (2018) JELR 105981 (CA) (http://www.legaltools.org/doc/vwgz31/). Rastan, 2008, p. 171, see supra note 112. Kiser Barnes, paper delivered at the Conference on Law, De Poort, the Netherlands, 14–17 December 2006, cited ibid. Publication Series No. 36 (2022) – page 352 9. Unity and Disunity in International Criminal Justice compliance, the Court cannot fulfil its mandate. Conversely, disunity among States towards the enforcement of international criminal justice will tend to undermine the cogency of the entire project. So central is this theme that it formed the sole reason why Emil Sandström, the ILC’s other Rapporteur in 1950, in answer to the same question first posed by the UN General Assembly in 1948 concerning “the desirability and possibility of establishing an international criminal jurisdiction”, argued in the negative (contrary to Alfaro), citing the lack of an adequate and stable enforcement apparatus: If, at last, we consider the possibilities of bringing the accused before the Court, provided that it be competent, and of executing the judgements, it must be admitted that there exists no international organization whatsoever for this purpose. In the event of a State refusing to appear before the Court, or to bring before it persons being in its territory, or to execute a judgement, there are no means, in the actual organization of the international community, to have this done […] No organization does exist to enforce an appearance before the Court or the execution of its judgements, and it seems difficult to establish such an organization. The jurisdiction therefore is likely to be limited and brought into action in a haphazard way. There are great risks that culprits will not always be brought before the Court. On the whole this will give the impression that the jurisdiction is being exercised in an arbitrary way. Its deterring effect will thus be very doubtful, if any. 121 The poignancy of Sandström’s prognosis rings loudly in our ears 70 years later. It may be a damning but fair assessment to say that the prevention and effective repression of genocide, crimes against humanity, war crimes and aggression, while universally acclaimed at the level of principle, 122 has not yet reached an acceptable level of priority to warrant signifi121 122 Report on the Question of International Criminal Jurisdiction by Emil Sandström, Special Rapporteur, UN Doc. A/CN.4/20, 30 March 1950, para. 34 (http://www.legal-tools.org/doc/ 63c610/). See also Tomuschat, 1996, p. 63, see supra note 66 (referring to the draft ILC Code of Crimes): “A Code of Crimes against the Peace and Security of Mankind in the form of a treaty which is supported by some groups of States and resisted by others would constitute a contradiction in and of itself. Such a Code can neither be adopted nor enforced by majority decisions. It needs endorsement by the international community as a whole.”. See, for example, Statement by the President of the Security Council, UN Doc. S/PRST/2004/34, 6 October 2004 (http://www.legal-tools.org/doc/7626d6/); Security Council Resolution 1674 (2006), UN Doc. S/RES/1674 (2006), 28 April 2006 (http://www.legaltools.org/doc/4bf3cc/). Publication Series No. 36 (2022) – page 353 Philosophical Foundations of International Criminal Law: Legally-Protected Interests cant policy re-alignment in political, military and economic spheres. And although issue-linkage between peace and justice has in rare moments of collective unanimity successfully informed compliance-inducing efforts in certain specific contexts, 123 as a general rule the willingness of the international community to seek the enforcement of judicial decisions has tended to fall back on the discrete decisions of individual States to transform such principles into practical policy priorities. As such, it may still be accurate to say that support for the Court will remain both unpredictable and subject to competing priorities, depending on the convergence of a number of policy considerations for each State. 124 By contrast, if the non-compliance procedure is to genuinely influence State behaviour, the support for justice must be matched by concerted, consistent and unified action by the international community in assuming its responsibility to enforce. 125 Understood in this sense, ‘unity’ arguably more than any other principle becomes the pivot, the organising principle, for “guaranteeing lasting respect for and the enforcement of international justice”. 126 9.6. Disunity It might seem odd to engage in a discussion on ‘unity’ in relation to international criminal adjudication. As the practice, rather than the mere idea, of international criminal justice shows, the work of such institutions can be deeply divisive. Wide-ranging debates over their legitimacy, 127 their politi- 123 124 125 126 127 See, for example, Rastan, 2008, pp. 165–69, see supra note 112, discussing policy linkages between ICTY co-operation by States of the former Yugoslavia and their participation in the European Union’s Stabilisation and Association Process and NATO’s Partnership for Peace programme, or for the lifting of economic sanctions and the rendering of multilateral and bilateral assistance, by the World Bank or the United States to induce or coerce compliance by States of the former Yugoslavia. Ibid., p. 169. Ibid., pp. 181–82. Preamble, ICC Statute, para. 11, see supra note 8. Erik Voeten, “Public Opinion and the Legitimacy of International Courts”, in Theoretical Inquiries in Law, 2013, vol. 14, no. 2, pp. 411–36; Yvonne M. Dutton, “Bridging the Legitimacy Divide: The International Criminal Court’s Domestic Perception Challenge”, in Columbia Journal of Transnational Law, 2017, vol. 56, no. 1, pp. 71–122; Sergey Vasiliev, “The Crises and Critiques of International Criminal Justice”, in Kevin Jon Heller, Jens Ohlin, Sarah Nouwen, Frederic Mégret and Darryl Robinson (eds.), The Oxford Handbook of International Criminal Law, Oxford University Press, 2020, pp. 626-651; DeGuzman, 2020, see supra note 38. Publication Series No. 36 (2022) – page 354 9. Unity and Disunity in International Criminal Justice cisation, 128 their selectivity; 129 on their impact on prevention, 130 on peace and security, 131 on domestic proceedings or on alternative conceptions of justice; 132 their costs; 133 internal contestation over their adjudicative function; 134 and a seemingly endless series of controversies, 135 attest to the discordant debate engendered by the work of such courts and tribunals. 128 129 130 131 132 133 134 Koskenniemi, 2002, see supra note 99; Kennedy, 2002a, see supra note 42; Sarah M.H. Nouwen and Wouter G. Werner, “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan”, in European Journal of International Law, 2011, vol. 22, no. 4, pp. 1161–1164; Nouwen, 2012, pp. 327–51, see supra note 97. Allison Marston Danner, “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court”, in American Journal of International Law, 2003, vol. 97, no. 3, pp. 510–52; William A. Schabas, “Victor’s Justice: Selecting ‘Situations’ at the International Criminal Court”, in John Marshall Law Review, 2010, vol. 43, no. 3, pp. 535–52; Asad Kiyani, “Third World Approaches to International Criminal Law”, in AJIL Unbound, 2015, vol. 109, pp. 255-259. Tallgren, 2002, see supra note 16; David S. Koller, “The Faith of the International Criminal Lawyer”, in New York University Journal of International Law and Politics, 2008, vol. 40, no. 4, pp. 1027–29; Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?”, in International Organization, 2016, vol. 70, no. 3, pp. 443–75; Linda Carter and Jennifer Schense (eds.), Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals, Torkel Opsahl Academic EPublisher, Brussels, 2017 (http://www.toaep.org/nas-pdf/1-carter-schense). Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism”, in Human Rights Quarterly, 2009, vol. 31, no. 3, pp. 624–54; Kathryn Sikkink and Hun Joon Kim, “The Justice Cascade: The Origins and Effectiveness of Prosecutions of Human Rights Violations”, in Annual Review of Law and Social Science, 2013, vol. 9, pp. 269–85; Leslie Vinjamuri, “The International Criminal Court and the Politics of Peace and Justice”, in Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford University Press, 2015, pp. 13–29. Sarah M.H. Nouwen and Wouter G. Werner, “Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity”, in Journal of International Criminal Justice, 2015, vol. 13, no. 1, pp. 157–76; Carsten Stahn, “Justice Civilisatrice?”, in Christian De Vos, Sara Kendall and Carsten Stahn (eds.), Contested Justice: The Politics and Practice of International Criminal Court Interventions, Cambridge University Press, 2015, pp. 46-84; Kevin Jon Heller, “Radical Complementarity”, in Journal of International Criminal Justice, 2016, vol. 14, no. 3, p. 637; Phil Clark, Distant Justice: The Impact of the International Criminal Court on African Politics, Cambridge University Press, 2018. David Wippman, “The Costs of International Justice”, in American Journal of International Law, 2006, vol. 100, no. 4, pp. 861–80; Stuart Ford, “What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach”, in Washington University Global Studies Law Review, 2017, vol. 16, no. 1, pp. 1–70. ICC, Situation in the Central African Republic, Prosecutor v. Jean-Pierre Bemba Gombo, Appeals Chamber, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to Article 74 of the Statute”, 8 June 2018, ICC-01/0501/08-3636-Red (http://www.legal-tools.org/doc/40d35b/); Dissenting Opinion of Judge Publication Series No. 36 (2022) – page 355 Philosophical Foundations of International Criminal Law: Legally-Protected Interests This diversity of opinion and free-flowing debate, indicative of inclusive critical discourse, is of course a precondition for a concept of ‘unity’ that opposes hegemony and uniformity, and is instead based on the demands of a just (and therefore unprejudiced) inquiry. It also reflects the nascent and exceptional nature of the law’s application in this arena, leading to highly inconsistent results relative to the scale of the overall phenomena of atrocity crimes. And it mirrors the deeply volatile contexts in which such courts are called to operate, either during or directly after the most traumatic periods of social upheaval. But our inability to agree on why the ICC was created, what social function it serves, and how it can be effective has an impact on the effectiveness of the regime. As described above, the inconsistent or disorderly application of legal norms to stem the worst excesses of violent human agency can weaken the law’s legitimacy and its functions. 136 What does this mean for the three themes of this chapter (examining the rationales for the creation, purpose and operation of the ICC)? At the individual level, rejection of the concept of humanity’s oneness and the duty that attends the idea of trusteeship diminishes our empathy for or obligation towards others, who are separated from us by abstractions of territory or nationality and the random effects of proximity; at worst, it tends towards cynicism and apathy (“these things happen, over there, they have nothing to do with us”). 137 Institutionally, the absence of accountability, engendering a culture of impunity, can precipitate renewed cycles of violence, reinforcing patterns of behaviour that legitimatise violence as a means to power. And at the level of the international community, disagreement over whether international criminal courts contribute to a rulesbased order, or inhibit it, stultifies the enforcement of judicial decisions. 135 136 137 Sanji Mmasenono Monageng and Judge Piotr Hofmański, ICC-01/05-01/08-3636-Anx1-Red (http://www.legal-tools.org/doc/dc2518/); Separate Opinion of Judge Van den Wyngaert and Judge Morrison, ICC-01/05-01/08-3636-Anx2 (http://www.legal-tools.org/doc/c13ef4/); Concurring Separate Opinion of Judge Eboe-Osuji, ICC-01/05-01/08-3636-Anx3 (http:// www.legal-tools.org/doc/b31f6b/). Darryl Robinson, “Inescapable Dyads: Why the International Criminal Court Cannot Win”, in Leiden Journal of International Law, 2015, vol. 28, no. 2, pp. 323–47. See above Section 9.4. See also Kreß, 2019, pp. 20-25, see supra note 56, calling for a coherent theory of international criminal justice. On the centrality of empathy to the task of pursuing justice, see Akhavan, 2017, pp. 191–92 and 197, see supra note 31. See also Richard Rorty, Contingency, Irony, and Solidarity, Cambridge University Press, 1989, pp. 189-198. Publication Series No. 36 (2022) – page 356 9. Unity and Disunity in International Criminal Justice Interest-based theories of State behaviour might describe this as an inevitable result of the amoral condition of international society, necessitating non-engagement and non-confrontation; of balancing off perceived evils against one another and by negating the possibility for value judgements, removing the moral imperative to act or intervene. Veteran Bosnian war journalist Ed Vulliamy, writing in the year the Rome Statute was adopted, aptly describes this neutrality as a form of appeasement: ‘Appeasement’ is a pejorative and historically tendentious term but it seems a good enough word to describe three years of diplomat-to-diplomat barter between the leaders of the democratic West and Radovan Karadžić – now a fugitive wanted for war crimes – beneath the chandeliers of London, Geneva and New York; or the matey soldier-to-soldier dinners of lamb and suckling pig shared by successive United Nations generals with their opposite number, General Mladić – likewise fugitive and wanted – whose death squads perpetrated the Srebrenica massacre, on his personal orders and in his presence. After so much handshaking and negotiation while these two men were very publicly engaged in their foul pogrom, it is curious to see the international establishment baying for their capture, now that it is too late and their work is done. 138 Part of the reason why international criminal justice is not seen to work in the way criminal law is supposed to function at the domestic level is due to fundamental disagreements over concepts, such as our conception of international society and the values it seeks to uphold. If we hold to the logic of the inter-State system, efforts in the field of international criminal law will forever be spasmodic and uncertain, and Sandström’s scepticism will continue to ring true. International criminal justice will offer viability in routine cases with minimal political volatility, but will be unable to function effectively or will be severely hampered when confronting the interest of powerful actors, who can either leverage the international system to create disunity or seek to undermine the legitimacy of the legal norm itself or the institution that seeks to assert it. And when so much is disagreed upon, 138 Ed Vulliamy, “Bosnia: The Crime of Appeasement”, in International Affairs, 1998, vol. 74, no. 1, p. 75. Publication Series No. 36 (2022) – page 357 Philosophical Foundations of International Criminal Law: Legally-Protected Interests the pursuit of justice itself may be seen as a disruptive force, a harbinger of disunity in world affairs. 139 Even where the rationale of humanity’s underlying oneness is given expression, differences may persist over who is represented by humanity or how to prioritise competing values in humanity’s name. 140 War crimes prosecutions, in particular, occupy a crowded and complex space alongside parallel humanitarian, security and political interests, whose disparate objectives may lend themselves to instrumentalisation precisely to prevent issue-linkage, leading to poorly integrated results lacking overall coherence. 141 139 140 141 See, for example, Stephen D. Krasner, “Realist Views of International Law”, in Proceedings of the ASIL Annual Meeting, 2002, vol. 96, commenting on p. 268: “realists of all types agree that the traditional view of international law held by many lawyers not only ignores or obfuscates power and interests but can be destabilizing and counterproductive. It is naive to expect that a stable international order can be erected on normative principles embodied in international law. Well-intentioned efforts to institutionalize structures like the ICC can increase disorder and violence”. See also Brad Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order, Oxford University Press, 2011, observing on p. 284: “There is an inherent tension between the spirit of international criminal justice, which cannot abide impunity, and the present international law of peace and security, which effectively demands that impunity be abided in the absence of an extraordinary political consensus […] The post-World War II order, as constructively amended in the era of decolonization, established the priority of peace and respectful cooperation among judicially equal states; the ethos was one of ideological pluralism and forbearance, qualified only by a Security Council mechanism requiring an extraordinary cross-cutting consensus. That the system leaves unredressed all but the most extraordinary injustices occurring within state boundaries is not an aberrant consequence; the system, mindful that great-power predation has typically flown the flag of righteousness, prioritizes the impeding of impositions”; Allott, 2002, pp. 62–69, see supra note 19. Koskenniemi, 2012, p. 59, see supra note 7: “To engage in it [international law] is not to be part of some world-wide effort to construct a harmonious system of rules but to take part in controversies about how to prioritise matters of international concern […] International law does not contain a ready-made blueprint for a better world that could only be ‘applied’ so as to bring about peace and justice. Instead, it contains arguments and positions, precedents and principles that may be employed to express contrasting interests or values in a relatively organised way”; David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy, Princeton University Press, 2018, p. 269: “International law is a set of arguments and counter-arguments, rhetorical performances and counter-performances, deployed by people pursuing projects of various kinds”; Focarelli, 2012, pp. 456–61, see supra note 42. See, similarly, Yuval Shany, Assessing the Effectiveness of International Courts, Oxford University Press, 2014, pp. 20–22, on the problem of goal ambiguity, observing: “fact patterns that lead to the creation of international courts (for example, wars or complex econom- Publication Series No. 36 (2022) – page 358 9. Unity and Disunity in International Criminal Justice Arguably, our inability to have a coherent view on the role of international criminal justice on the global scene reflects our fragmented approach towards the world around us, partly fed by the highly specialised and technical tendencies of the discipline. This can contribute towards paralysis in world undertakings. Hans Kelsen, writing in 1928 during the inter-war period, described the: contradictions of an international legal theory which in an almost tragic conflict aspires to the height of a universal legal community erected above the individual states but, at the same time, remains a captive of the sphere of power of the sovereign state. 142 A generation later his student, Hersch Lauterpacht, observed: The disunity of the modern world is a fact; but so, in a truer sense, is its unity. This essential and manifold solidarity, coupled with the necessity of securing the rule of law and the elimination of war, constitutes a harmony of interests which has a basis more real and tangible than the illusions of the sentimentalists or the hypocrisy of those satisfied with the existing status quo. 143 More recently, in commenting on the impasse confronting the contemporary European discourse around integration, Jürgen Habermas has contrasted a perspective of national autonomy rooted in the nineteenth century with the requirements of international constitutionalism (the regulation of political power through a hierarchically structured legal order), observing: The enduring political fragmentation in the world […] is in contradiction with the systemic integration of a multicultural 142 143 ic relationships), may involve a large number of constituencies and are thus less amenable to political consensus regarding specific goal formulations among the goal-setters”. Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu einer Reinen Rechtslehre, 2nd edition, Mohr, Tübingen, 1928, p. 320, cited with English translation in Bardo Fassbender, “The Meaning of International Constitutional Law”, in Nicholas Tsagourias (ed.), Transnational Constitutionalism: International and European Perspectives, Cambridge University Press, 2007, p. 307. See similarly, Hans Kelsen, “Les rapports de système entre le droit interne et le droit international public”, in The Hague Academy of International Law, Recueil des Cours, 1926, vol. 14, pp. 325–26. Hersch Lauterpacht, “The Reality of the Law of Nations”, in Hersch Lauterpacht (ed.), International Law Being the Collected Papers of Hersch Lauterpacht: Volume 2: The Law of Peace, Part 1: International Law in General, Cambridge University Press, 2009, p. 26. Publication Series No. 36 (2022) – page 359 Philosophical Foundations of International Criminal Law: Legally-Protected Interests world society and is blocking progress in the process of legally civilizing violence between states and societies. 144 Theoretical physicist David Bohm argues that part of the reason for our fragmentary self-world view comes from our functional tendency to divide-up complex problems into manageable proportions. The problem arises when we confuse how we think about things as explanatory of how things objectively are in the world. 145 This can lead to a perception that the real world is itself broken up into fragmentary, disparate and irreconcilable parts – and this distorted perception can in turn foster confusion and interfere with our clarity of thought about reality itself: [F]ragmentation is continually being brought about by the almost universal habit of taking the content of our thought for ‘a description of the world as it is’. Or we could say that, in this habit, our thought is regarded as in direct correspondence with objective reality. Since our thought is pervaded with differences and distinctions, it follows that such a habit leads us to look on these as real divisions, so that the world is then seen and experienced as actually broken up into fragments […]. This confusion is of crucial significance, since it leads us to approach nature, society, and the individual in terms of more or less fixed and limited forms of thought, and thus, apparent- 144 145 Jürgen Habermas, “The Crisis of the European Union in the Light of a Constitutionalization of International Law”, in European Journal of International Law, 2012, vol. 23, no. 2, p. 337. On international constitutionalism, see, generally, Erika De Wet, 2006, see supra note 3; Anne Peters, “Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures”, in Leiden Journal of International Law, 2006, vol. 19, no. 3, pp. 579–610; Fassbender, 2007, see supra note 142; Wouters, 2007, pp. 329–67, see supra note 3. See also Collins and Bohm 2017, p. 77, see supra note 114, observing that the structure of the international system and its various transnational regimes, and the tug and pull of autonomy and dependence of international institutions from their member states, currently prevents any one actor from assuming overall authority such as could bring coherence and co-ordination to disparate institutional practices. Bohm, 1980, p. 3, see supra note 16: “In essence, the process of division is a way of thinking about things that is convenient and useful mainly in the domain of practical, technical and functional activities (e.g., to divide up an area of land into different fields where various crops are to be grown). However, when this mode of thought is applied more broadly to man’s notion of himself and the whole world in which he lives (that is, to his self-world view), then man ceases to regard the resulting divisions as merely useful or convenient and begins to see and experience himself and his world as actually constituted of separately existent fragments”. Publication Series No. 36 (2022) – page 360 9. Unity and Disunity in International Criminal Justice ly, to keep on confirming the limitations of these forms of thought in experience. 146 A fragmented conception of social existence set against universal proclamations of ‘unity’ in countless international instruments suggests humanity is struggling with contradictory identities. It yearns for a world that is just, but appears to uncritically accept its unattainability, as attested by the common experience of humanity. International law itself reflects these conflicting tendencies. Evidently, values associated with ‘unity’ cannot be simply superimposed onto structures of thought premised on very different patterns of interaction. 147 Just as with ideas unpinning older forms of social organisation, it may be that the demands of the contemporary world call for revisiting our baseline assumptions, the ways we organise our thinking, and the ways we act them out. Scholars in other fields refer to this as the process of examining those interpretive frameworks “that shape our perceptions, interpretation and representations of reality; mentally organize our experience; and provide normative guides for our actions”. 148 And if the goal is to alter social reality, arguably this can only meaningfully be realised through cultural change, brought about by genuine and broad based participation in the formation and shaping of our contemporary discourses involving the generality of humankind. 149 In this context, Allott argues that the challenge is not to merely reorganise the co-existence of states, but of “placing the idea of a universal human society at the apex of the self-understanding of the human spe146 147 148 149 Ibid, pp. 5-8, continuing at pp. 8-9: “[…] some might say: ‘Fragmentation of cities, religions, political systems, conflict in the form of wars, general violence, fratricide, etc., are the reality. Wholeness is only an ideal, toward which we should perhaps strive.’ But this is not what is being said here. Rather, what should be said is that wholeness is what is real, and that fragmentation is the response of this whole to man’s action, guided by illusory perception, which is shaped by fragmentary thought. In other words, it is just because reality is whole that man, with his fragmentary approach, will inevitably be answered with a correspondingly fragmentary response”. See also Surabhi Sharma, Chapter 8 of this volume, Section 8.4.3. Cf. Nakhjavani and Mirzaagha, see supra note 2, on the equally problematic opposing tendency to gloss over the complexities of social reality. See supra note 73 and accompanying text. Karlberg (2012), see supra note 32, pp. 17-18, referring to the works of Gregory Bateson, Steps to an Ecology of Mind, Chandler Publishing, San Francisco, 1972, and Erving Goffman, Frame Analysis: An Essay on the Organization of Experience, Harvard, 1974. See supra notes 13-14 and accompanying text concerning public discourse around slavery. Compare the manifold evolving, multidimensional contemporary discourses on climate change, the pandemic, the impact of war and conflict, or the effects of deep-seated economic and social injustices. Publication Series No. 36 (2022) – page 361 Philosophical Foundations of International Criminal Law: Legally-Protected Interests cies”. 150 This he argues requires altering our self-perception, since a distorted perception of social reality as ineluctable leads to fatalism about our capacity to bring about social change, resulting not only in social paralysis, but an abdication of responsibility: False fatalism is defeatism. It has deep negative effects on the whole of human self-consciousness. It is disempowering. It suggests that we are not able to cause the forces of selfperfecting to overcome the forces of self-harming. It may even suggest that our conscious efforts are as likely to make things worse as to make them better. It is discouraging, justifying our surrender in the face of the actual state of the human world, even though we know perfectly well that the actual state was not, and is not, the only possible state of the human world. It is self-deceiving, claiming that there is something called human nature, and human nature has always been as it is, and is not likely to be any different in the future. It is stupefying, undervaluing and undermining the great capacities of the human mind to imagine and to realise the possible, constantly defying the brutal reality of the actual. 151 Roberto Unger has similarly written of the illusions of ‘false necessity’ which arise from mistaking present society for ‘possible humanity’, and from the acceptance of the ideas and attitudes that make the established order seem natural, necessary or authoritative. 152 Failure to recognise the debilitating effects of this ‘hallucination’ results in what he characterises as 150 151 152 Allott, 2016, p. 313, see supra note 19. Compare Kant’s fifth proposition: “The greatest problem for the human species, the solution of which nature compels him to seek, is that of attaining a civil society which can administer justice universally”, Idea for a Universal History with a Cosmopolitan Aim, in Immanuel Kant, Political Writings, Hans Reiss ed., Cambridge University Press, 1991, p. 45. See also Bartelson, 2009, see supra note 43, p. 3: “we appear to be stuck with an inescapable tension between particularistic and universalistic accounts of human association”; going on to observe (p. 9): “redefining the concept of community so that it becomes possible to make coherent sense of the idea of world community necessitates a wholesale change in the way we understand political identity. We need a theory of identity that makes it possible to regard the universal and the particular as mutually implicating rather than fundamentally opposed – a theory of identity that also makes it possible to regard human beings and the communities that they inhabit as embedded in a more comprehensive human community than that commonly exemplified by the nation”. Allott, 2016, p. 4, see supra note 19. See also Allot’s discussion of ‘physic atrophy’, ibid., p. 309. Roberto Unger, False necessity: Anti-necessitarian social theory in the service of radical democracy, Verso, London, 2001, p. xx. Publication Series No. 36 (2022) – page 362 9. Unity and Disunity in International Criminal Justice “the central difficulty in our understanding of ourselves and of society”, which is to map out the scope of transformative possibilities: So long as we lack a credible view of discontinuous structural change – of how we can and do remake the institutional and discursive orders we inhabit – we find ourselves driven back to a surrogate standard of realism in the evaluation of proposals for the reform of society. A proposal will seem realistic if it remains close to what exists, and utopian if it is distant from what exists. As a result, every proposal will be made to appear either trivial or utopian. This false rhetorical dilemma is the consequence of our lack of a believable account of how, piece by piece and step by step, we can and do reorganize society. […] The solution is to wage the campaign against false necessity through many forms of thought […] to combat the domestication of criticism and disrupt the alliance between skepticism and resignation, and to show how particular strategems of intellectual subversion can fit together into a different way of thinking.153 As discussed above, constructing a social reality in which the inherent oneness of humanity is consciously pursued is challenged foremost by certain habits of thought, including an unwavering belief in the incorrigible selfishness of human beings and in the impermeability of institutional and relational arrangements. This can lead to cynicism, despondency and despair over our ability to do anything about what we see as wrong in the world. This suggests that as important as being clear about the many injustices in the world is recognising the psychological barriers that guarantee their persistence – and which might, in turn, limit our ability to have a clear-sighted sense of what may be possible and the agency that we can exercise. Arguably, it is this disconnect between our ideas about the world and the values and interests that international law is designed to serve that causes our fragmentary world system. This does not necessarily mean that actors in the inter-State system, when they fail to uphold a cherished legal norm, do not subscribe to the inherent dignity of every human being. The 153 Ibid., pp. xx and xxii. See also the notion of ‘false consciousness’, as developed by Engels, Gramsci, Marcuse and others, based on the internalisation or active acceptance of a dominant ideology or on resignation to the unchanging inevitability of the social order; for discussion, see Steven Lukes, Power: A Radical View, 3rd edition, Macmillan, 2021, pp. 129156. Publication Series No. 36 (2022) – page 363 Philosophical Foundations of International Criminal Law: Legally-Protected Interests issues risk being trivialised when norm defectors are portrayed as villains. Even accounting for the obvious influence of political opportunism, what is also at play is competition over norm allegiance: recalling the theme of fragmentation in a different context, other values, such as pragmatic (national) self-interest or principles of sovereign equality, non-intervention and friendly relations, are given precedence; or there is a contestation over normative hierarchies and the scope for their resolution. 154 Phrased differently, we might say that there is rupture in the conceptual frameworks we use to understand and interpret social relations and social phenomena. For example, as shown by events such as recurrent refugee-migrant crises throughout the world, while on a human level sympathy or even indignation might be felt universally for the plight of others, there is disagreement on how this sentiment of common bonds should be translated into action, and by whom. 155 In the case of international criminal justice, it is this lack 154 155 In the context of the Bashir warrants, for example, the issue was formulated by South Africa and Jordan as a conflict between the customary international law norm of sovereign equality, which remains applicable towards a non-Party State such as the Sudan and whose observation would require the Court not to proceed with its co-operation request pursuant to Article 98 of the Statute, as contrasted with those treaty obligations voluntarily consented to by States Parties, including acceptance to be bound by the terms of Article 27 of the Statute and the extent to which this might modify the application of Article 98 inter-parties; ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, Submission from the Government of the Republic of South Africa for the purposes of proceedings under Article 87(7) of the Rome Statute, 17 March 2017, ICC-02/05-01/09-290, paras. 54–74 (http://www.legal-tools.org/ doc/2854f0/); ICC, Situation in Darfur, Sudan, Prosecutor v. Al Bashir, The Hashemite Kingdom of Jordan’s appeal against the “Decision under article 87(7) of the Rome Statute on the non-compliance by Jordan with the request by the Court for the arrest and surrender [of] Omar Al-Bashir”, 12 March 2018, ICC-02/05-01/09-326, para. 20 (http://www.legaltools.org/doc/826788/). As Seyla Benhabib observes, “[o]ur fate, as late-modern individuals, is to live caught in the permanent tug of war between the vision of the universal and the attachments of the particular”; The Rights of Others: Aliens, Residents and Citizens, Cambridge University Press, 2004, p. 16. On norm contestation, see, generally, Andreas Fischer-Lescano and Gunther Teubner, “Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law”, in Michigan Journal of International Law, 2004, vol. 25, no. 4, pp. 1004-1009 (on the plurality of “society-wide institutionalized rationalities” engendered by different transnational legal regimes which each “claim a global validity for themselves”); David Kennedy, 2007, p. 657, see supra note 45: “There is no one ‘international community.’ The phrase refers to the particular elite who are the audience for the global media. We must recognize the idea that they share a ‘consensus’ view of global political or ethical matters – or that their views condense the attitudes of humanity – as a fantasy. It may often be a desirable fantasy, and we may often want to encourage it, but it is a fantasy. And it can be a dangerous fantasy. It can encourage us to think there is, in fact, an ‘international community’ ready to back up pronouncements made in its name”; Martti Koskenniemi, “The Fate of Public Inter- Publication Series No. 36 (2022) – page 364 9. Unity and Disunity in International Criminal Justice of unity in thought and action in world undertakings that instils doubt as to why a permanent international criminal court was created, what social function it serves, and whether it can be effective. In this context, a measure of perspective may also be warranted relative to the ICC’s lofty goals. As Adam Roberts reminds us, we should be careful that international courts and tribunals are not drowned under the weight of exaggerated expectations, given that they “are only likely to have a minor impact on vast problems, and are not necessarily the most important mechanism even for the limited objective of securing implementation of the laws of war”. 156 And if international criminal justice is part of a 156 national Law: Between Technique and Politics”, in Modern Law Review, 2007, vol. 70, no. 1, p. 19, on the lack of consensus on what values or norms should be accorded priority over others and who should decide; Prost, 2012, p. 188, see supra note 2, on the difficulties on conceiving of an axiological ‘super-determination’ of certain norms by others, noting even “jus cogens is made up of universal humanitarian values (human rights, prohibition of torture and slavery, war crimes) as well as individual state values (non-intervention, sovereign immunities, prohibition of the use of force), and these axiological orders or ‘layers’ often clash or contradict each other”; Jan Klabbers, “Law, Ethics and Global Governance: Accountability in Perspective”, in New Zealand Journal of Public and International Law, 2013, vol. 11, no. 2, p. 316: “in the fragmented global order […] which rule is to be applied is also a matter of how an issue is framed: many issues can be approached from radically different angels, leading to the possible application of radically different rules”; MacIntyre, 2014, pp. 9-13, see supra note 21, on the interminability of much contemporary moral debate arising from the “conceptual incommensurability” of rival arguments based on their radically differing premises and normative assumptions. On reframing contemporary social discourses in an effort to move beyond modes of thought that perpetuate social conflict and injustice, see Karlberg (2012), see supra note 32, rejecting two dominant interpretive frames prevalent in the discourses of society – the ‘social command’ frame (conceptualized as a legacy of patriarchal or authoritarian social relations) and the ‘social contest’ frame (where society is understood as a competitive arena in which self-maximizing individuals or groups pursue divergent interests in a world characterized by scarce resources and opportunities) – and instead proposing a ‘social body’ frame, based on the logic of interdependence, where the well-being of every individual or group depends upon the well-being of the entire social body. As Karlberg observes, at p. 24: “collective well-being cannot be achieved through oppressive power hierarchies. Nor can it be achieved by structuring virtually every social institution as a contest of power. Rather, collective well-being can only be achieved by maximizing the possibilities for every individual to realize their creative potential to contribute to the common good within empowering institutional structures that foster and canalize human capacities in this way”. Adam Roberts, “The Laws of War: Problems of Implementation in Contemporary Conflicts”, in Duke Journal of Comparative & International Law, 1995, vol. 6, no. 1, p. 73. See also Damaška, 2008, p. 365, see supra note 96, in discussing the overabundance of goals that are claimed by and overburden international courts, cautions against “[d]isillusionment stemming from unfulfilled expectations”, observing “[a]n overly ambitious, or otherwise inappropriate, selection of goals generates disparities between declaration and achievement, and Publication Series No. 36 (2022) – page 365 Philosophical Foundations of International Criminal Law: Legally-Protected Interests wider normative enterprise to transform our modes of thinking and action for want of a better world, to overcome our unease at our coinciding perceptions of moral indignation and moral incoherence, we must also recall, as the editors of this volume caution, the limitations of the law. 157A compartmentalised preoccupation with legal rules and processes will likely fail to tap into the mainsprings of human motivation that are more appropriately served by philosophy, morality and belief. 158 As Allott observes, “a legal system cannot be better than the social consciousness that it enacts”. 159 157 158 159 uncertainty about their relative importance produces disorientation”; Payam Akhavan, “The Rise, and Fall, and Rise, of International Criminal Justice”, in Journal of International Criminal Justice, 2013, vol. 11, no. 3, p. 529, on the “projection of exaggerated normative fantasies on to this seeming panacea”. Morten Bergsmo and Emiliano J. Buis, “Editors’ Preface”, in Morten Bergsmo, Emiliano J. Buis and SONG Tianying (eds.), Philosophical Foundations of International Criminal Law: Legally-Protected Interests. See also Koskenniemi, 2007, p. 30, see supra note 155, on the invocation of international law in the public imagination “as a kind of secular faith […] as a placeholder for the vocabularies of justice and goodness, solidarity, responsibility and faith”, observing that “the tradition of international law has often acted as a carrier of what is perhaps best described as the regulative idea of universal community, independent of particular interests or desires”. See, for example, Allott, 2016, pp. 248-253 and similarly at p. 267, see supra note 19, identifying four constitutive forces that historically have had the power to bind society: religion, philosophy, ideology and human psychology; acknowledging their potential to be used and abused by holders of public power, but insisting on the necessity for fostering their inherent benefits while minimising their formidable costs. See also David Kennedy, “The Mystery of Global Governance”, in Ohio Northern University Law Review, 2008, vol. 34, no. 3, p. 851: “our efforts to comprehend global governance have focused far too much on the authority of agents we can see to act within structures we understand. We have paid too little attention to the myriad ways power flows through the capillaries of social life, perhaps particularly at the global level […] many are flows of belief, modes of knowledge, of affiliation and disaffiliation, the social movement of wills to power, the desire to submit, the experience of triumph and victimization, pride and shame”. See also Unger, p. xxv, see supra note 148, on the need for both “practical and spiritual action to reproduce, refine, reform or replace the institutional arrangements and enacted beliefs that shape the routines of a society”; going on (pp. 572 et seq.) to discuss the need for “a social vision” and “the ideal of personality and the psychologic dynamic that correspond to this collective ideal and help inspire and justify it”. Allott, 2002, p. 313, see supra note 19, further remarking: “If the role of philosophy in human self-surpassing and self-perfecting is not restored […] then the development of the international legal system is condemned to be an impoverished product of an impoverished human consciousness”. See also ibid., at p. 83: “From the spiritual mind, energised by the idea of the ideal, come our most passionate moral feelings – of anger (for example, in the face of injustice or oppression), of hope (for example, for freedom and self-fulfilment), of joy (for example, in the face of the good and the beautiful) – feelings capable of inspiring limitless self-surpassing and self-sacrifice”; and at pp. 312–14: “Politics in the most socially Publication Series No. 36 (2022) – page 366 9. Unity and Disunity in International Criminal Justice While such motivational consciousness cannot cause international criminal courts to stray outside the logic of their legal frameworks, it can play an important role at the level of public discourse, where our ideas about criminal justice are formed, by considering what it means, for example, to “guarantee lasting respect for and enforcement of international justice”. 160 And if the patterned way we think and talk about international justice, our views and assumptions, influence social practices – even as social practices shape our discourses – this might remind us of the relationship between how we think about social phenomena and how we act. 161 To the extent this dialectical process shapes, and can reshape, our perceptions, attitudes and behaviours, it brings into focus the relevance of ideas and of attitudinal changes in steering the exercise of public power towards imple- 160 161 developed national systems has recently degenerated into an impoverished debate within narrow dialectical limits, focused particularly on the manipulation of mass-opinion […] Corrupted social consciousness fills the private minds of human beings everywhere with low values generated as systematic by-products of social systems which will soon be, if they are not already, beyond the redeeming power of higher values […] The meaning and measure of human progress are difficult to establish. A fair general judgement might be that material progress has not been matched by spiritual progress […] [we must find] within ourselves another capacity, the capacity to form the idea of the ideal – the ideal of a better human future which we can choose to make the actual”. Recalling the tradition of ‘Bildung’ developed by the German Lutheran Pietist movement that went on to influence late eighteenthand nineteenth-century German philosophy, the ‘constitutional mindset’ and ‘constitutional vocabulary’ Koskenniemi describes is similarly framed in terms of a programme of moral, spiritual and political regeneration: “The Pietist search for self-improvement, Bildung, and spiritual perfection prepares a constitutionalist mindset from which to judge the world in a manner that aims for universality, impartiality, and all the virtues of the ‘inner morality of law’: honesty, fairness, concern for others, the prohibition of deceit, injury, and coercion”; going on to observe: “The virtue of constitutionalism in the international world follows from a similar universalizing focus, allowing extreme inequality in the world to be not only shown but also condemned. This inequality may be explained by historical causes and described in economic or sociological terms. But something like a constitutional vocabulary is needed to articulate it as a scandal insofar as it violates the equal dignity and autonomy of human beings”; Koskenniemi, 2007, p. 33, see supra note 36. See also Kelsen, 1926, pp. 325–26, see supra note 142, on the need for a revolution in social consciousness to surpass the contradictions inherent in the fluctuating demands of an individualistic conception of state sovereignty and a universalist conception of humanity and a universal legal order. Preamble, ICC Statute. See, for example, Stahn, 2012, pp. 279–80, see supra note 96, on the ‘expressive function’ of international criminal courts, observing that “their strength and virtue may lie in their ability to ‘send messages’, shape debates and discourse, and influence the generation and perception of norms”; Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice, Oxford University Press, 2020, p. 11. See, for example, Karlberg (2012), see supra note 32. Publication Series No. 36 (2022) – page 367 Philosophical Foundations of International Criminal Law: Legally-Protected Interests mentation of cherished norms. 162 At the same time, without internalisation, behavioural change is unlikely to follow. As observed by ‘Abdu’l-Bahá ‘Abbás in his 1875 treatise on the impact of modernity on Iran (in discussing the efficacy of wide-ranging institutional and rule of law reforms): “any agency whatever, though it be the instrument of mankind’s greatest good, is capable of misuse. Its proper use or abuse depends on the varying degrees of enlightenment, capacity, faith, honesty, devotion and high-mindedness of the leaders of public opinion”. 163 This suggests that the gap between norms and practice may be as much dependent on the values underpinning individual, institutional and community relations as it is on laws. 164 And at the level of ideation, in challenging the cynicism that arises from disillusionment over whether it is really possible to change the situation in the world or whether any of us can make a difference, the correlation of the concepts of ‘unity’ and ‘justice’ might cause us to reflect upon, and assume responsibility for envisaging, what the implications of the oneness of humanity might mean for how we organise the structures of society. 162 163 164 MacIntyre, 2014, pp. 211- 236, see supra note 21; Klabbers, 2013, see supra note 155; Allott, 1990, p. 48, see supra note 20, on the centrality of the values in our consciousness to transform ideas into action, in the sense that values provide “a ground for choosing between possibilities”. See also Groff and Karlsson-Vinkhuyzen, 2018, see supra note 117. ‘Abdu’l-Bahá ‘Abbás, The Secret of Divine Civilization, Marzieh Gail (trans.), Bahá’í Publishing Trust, 1990 (1875), p. 16. See also pp. 64–66, calling for a global collective security arrangement based on the conclusion of an all-embracing international pact, based on clear territorial delimitation, the codification of principles governing inter-state relations, the identification of international agreements and obligations, and maintenance of mechanisms for arms control. See, for example, Morten Bergsmo and Viviane E. Dittrich, “Integrity as Safeguard Against the Vicissitudes of International Justice Institutions”, in Morten Bergsmo and Viviane E. Dittrich (eds.), Integrity in International Justice, Torkel Opsahl Academic EPublisher, Brussels, 2020, pp. 38-43, discussing the need for an “individual will to integrity” to embed a culture of integrity (http://www.toaep.org/nas-pdf/5-dittrich-heinze). Publication Series No. 36 (2022) – page 368 Publication Series No. 36 (2022): Philosophical Foundations of International Criminal Law: Legally-Protected Interests Morten Bergsmo, Emiliano J. Buis and SONG Tianying (editors) This book discusses notions such as ‘community interest’, ‘legally-protected interest’ and ‘legal good’ in the context of international criminal law. The authors assess main interests or values currently protected by international criminal law (including ‘humanity’ and ‘international peace and security’), their characteristics and inter-relations. Chapters then zoom in on supplementary values or interests that should receive further recognition by international criminal law, among them ‘reconciliation’, ‘solidarity’ and ‘unity of humankind’. A growing sense of environmental and security threats to our survival invites us to afford the value of ‘unity of humankind’ a greater measure of affirmation also through international criminal law. The anthology offers nine chapters by thirteen authors from diverse backgrounds, including China, India, Latin America, the Middle East, Nigeria and Western European and Other States Group, in alphabetical order: Ioanna N. Anastasopoulou, David Baragwanath, Morten Bergsmo, Emiliano J. Buis, Vahyala Kwaga, Susan R. Lamb, Melody Mirzaagha, Salim A. Nakhjavani, Tosin Osasona, Kafayat Motilewa Quadri, Rod Rastan, Surabhi Sharma and SONG Tianying. The questions they discuss go beyond the growing polarisation between rival ‘great powers’ and have some capacity to unite actors in a common, forward-looking endeavour. The editors argue that new international criminal law-making should be genuinely representative of humankind. This is the third volume in the series Philosophical Foundations of International Criminal Law published by TOAEP. The three volumes combined contribute 37 chapters organized in three thematic anthologies: Correlating Thinkers (2018), Foundational Concepts (2019), and now Legally-Protected Interests (2022). ISBNs: 978-82-8348-121-1 (print) and 978-82-8348-122-8 (e-book). Torkel Opsahl Academic EPublisher Via San Gallo 135r 50129 Florence Italy URL: www.toaep.org