Thursday, July 03, 2008

Of International Criminal Law (or the Perils of Left Legalism Act 2)

Hello folks. What with graduation and such I haven’t had much time to post, but I suspect I may have more time on my hands over the coming months, so watch this space. Anyway, today I thought I’d post on an issue about on which I have been ruminating for a while. A common feature of a lot of left anti-war discourse is the prominent usage of law and legalistic analysis. Thus, the Iraq war is frequently criticised as ‘illegal’ and Bush and Blair are frequently denounced as ‘war criminals’. I have previously objected to this ‘left legalism’ in a number of posts, comments etc., but here I would like to discuss – in some detail – the perils of adopting international criminal law in progressive strategy. It should be noted right from the outset that this is going to be a largely critical piece of work, although in my wider analyses I tend to try and theorise the progressive role of international law, here I’m going to concentrate exclusively on the ‘bad side’.

International criminal law is typically seen as being born in the aftermath of the Second World War in the Nuremburg and Tokyo International Military Tribunals. Here, the high command of the defeated powers were put on trial as individuals for violations of the laws and customs of war. Particularly striking here was the crime of waging aggressive for – in contravention of the Kellogg-Briand Pact – which was dubbed the ‘supreme international crime’. At the time this was rather controversial, as it was without precedent in international law, especially since individual criminal responsibility for violations of inter-state treaties had never happened before. This, combined with the seeming newness of much of the laws and customs of war (particularly crimes against humanity) gives rise to what was the first criticism of international law. It appeared – and continues to appear – as a form of ‘victors’ justice’. The victorious powers in World War 2 were able to ‘punish’ the defeated powers through the elaboration of new legal norms and new legal forms of responsibility.

But alongside this point another can be made. Typically the law of war distinguishes between jus ad bellum and the jus in bello, the former concerns when it is legal to use force (in self-defence etc.) the latter concerns what it is permissible to do when using force. The two are logically distinct, insofar as force legally authorised can the nonetheless be exercised in contravention to the jus in bello and the jus in bello applies irrespective of whether the force used has been legally authorised. At Nuremburg both of this regimes were subject to international criminalisation, but this was the first and last time this was to occur. In the subsequent successors to the IMTs (the ICTY, the ICTR etc.) jurisdiction was limited solely to the jus in bello, meaning that aggression was not to be punished; as Danilo Zolo notes:

Thus, a dual system of international criminal justice has taken shape in fact, something not unlike a double standard that places a ‘tailored justice’ for the world's great and middle powers and their victorious leaders side by side with a justice for vanquished peoples. In particular, international crimes relating to jus in bello, i.e. war crimes, which are usually considered less serious than the crime of aggression, have been prosecuted and punished with special severity, especially by the ICTY, whereas ‘the supreme international crime’ -- war of aggression -- mostly committed by the political and military authorities of major powers, has not even been mentioned in the statutes of international tribunals. As a consequence, the perpetrators of this crime remain unpunished on the top of the pyramid of international power.[1]

The way in which Zolo approximates the two-track approach to international criminal law with the international distribution of power is particularly useful from our perspective. Typically, it is imperialist nations who engage in the aggressive, unprovoked use of force, but this use of force has not been the subject of international criminal law. This is particularly apt in the case of Yugoslavia. It is largely agreed by even the most partisan of commentators that the NATO intervention in Balkans (particularly with regard to Kosovo) had no international legal basis, often it is characterised as illegal but legitimate (or something along those lines). Yet this act was (owing to the dual track system) never subject to prosecution, instead it was the defeated powers who were largely prosecuted for war crimes etc.

This is reinforced (to some degree) by the International Criminal Court. Although the ICC Statute makes provision for a crime of aggression this crime only enters into the jurisdiction of the Court when a definition of aggression can be arrived at. In practice it appears very unlikely that this definition will ever materialise (precisely because states do not want their leaders to be punished for this) and so the dual-track system will be maintained by the ICC. Thus, Peter Tatchell’s attempt to arrest John Bolton for the crime of aggression (a perfect example of how legalism might be used against imperial power) was blunted by this condition.

The next, and probably most obvious, way in which international criminal law is compromised is through its unequal implementation. Thus, right from the beginning there have been accusations of victors’ justice, as individuals from the victorious powers are rarely put on trial. In Nuremburg there was not even the thought of the possibility of putting the victors’ on trial (notwithstanding the fact that they likely did commit similar offences to those of their enemies), the ICTY did briefly investigate the possibility of NATO actions constituting crimes, but this was quickly dropped. However, whilst this is important in practice it should not overly concern us here. It can easily be argued that the solution for this problem is for the left to vigorously engage in immanent critique, until standards are equally applied. However, I now want to consider the ways in which we might say that the rules themselves are inherently flawed. This would be a mammoth task, too big for a mere blog post, so here I’m just going to make a few critical observations on a few legal norms and principles.

One important source of international criminal law is the law of armed conflict. Essentially, certain serious violations of the laws of armed conflict are taken to give rise to individual criminal responsibility. This is especially important when ‘war crimes’ and ‘war criminals’ are typically those terms most invoked by the left. So a few brief words on the laws of war. Typically, the laws of war are said to be structured by several animating principles, chief among them military necessity, proportionality and humanity. Generally, intentional violations of these principles are taken as attracting criminal responsibility. I won’t go into the criticism of how difficult it is to prove intentionality (suffice to say that it is), but instead analyse these specific principles.

So firstly, military necessity. Essentially, this principle holds that any attack has to be one that is militarily necessary. This finds itself actualised in the law forbidding direct attacks on civilians or their property. Thus, according to Article 51(2) of the 1977 Geneva Protocol I:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those which by their nature, location, purpose or use make an effective contribution to military action and whose partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

Anything not falling within this definition is classed as a civilian object and so is immune from an attack. In practice, however, this definition really isn’t very useful. It definitely means that an intentional attack on a civilian dwelling as such would be illegal, but it doesn’t go much further than that. Indeed the consensus is that this definition includes ‘dual use’ targets, those with both a civilian and military purpose. This would include bridges, electricity, food and water supplies (with some caveats). In fact, most capitalist (and in fact most semi-industrial) economies are so interconnected that any number of targets can be said to have a dual civilian-military function, making them prima facie legitimate targets. This can be seen in any number of recent wars and bombing campaigns – the first Gulf War, Kosovo etc. – which most commentators have praised for staying within the bounds of the law, indeed these conflicts were heavily policed by lawyers, who were scrupulously involved in the planning. Thus, as Jochnick and Normand note:

By endorsing military necessity without substantive limitations, the laws of war ask only that belligerents act in accord with military self-interest. Belligerents who meet this hollow requirement receive in return a powerful rhetorical tool to protect their controversial conduct from humanitarian challenges.[2]

However, as Tony Rogers notes[3] it is the principle of proportionality (among others) that does the real work in ‘limiting’ the ability of an attacker. Although there is no explicit statement of this principle to be found in the law one can find a basic statement of it in Art. 51(5)(b) of PI; which forbids:

An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

I doubt that this can really serve as much of a limit on anything. One always ought to be wary of laws which invoke the standard of ‘proportionality’ because it often serves as fig-leaf for some other type of calculation. This is because in order to calculate ‘proportionality’ it is necessary for the two factors to be commensurable in some way. There needs to be some commonality which allows us to equate the two. Often this is not the case. Even if we could ‘measure’ military advantage how exactly can we calculate how many human lives are acceptable for any given military advantage? The two values seem rather incomparable. Indeed this standard court manoeuvre for these sorts of things is to leave a substantial degree of discretion to commanders. What proportionality can do is serve as a standard of comparison, one can probably say an attack is disproportionate if the ‘same’ military advantage could have been gained with less loss of life, but this is about it. But this doesn’t seem to limit the military projections of the great powers, as surely it is always sensible to choose the attack which costs the least life.

One final argument on the broader principles of international criminal law and the laws of war has been advanced by Frederic Megret[4] (I would suggest people read this – as it really is a most excellent argument). Essentially, Megret argues that the laws of war can only be understood in relation to their colonial history. Right from the outset, the laws of war were invoked as against ‘barbarism’, which of course characterised the warfare of the colonies. Megret argues that in seeking to promote a ‘legitimate’ type of warfare it necessarily posits an image of ‘illegitimate’ forms of warfare and construct a particular type of legitimacy for warfare:

The laws of war, like a language, must assist us in recognizing war when we see it, and transform the perception of inchoate violence into a legally intelligible concept. In determining who the legitimate actors of warfare are, the laws of war necessarily promote a certain idea of what legitimate warfare is, as that warfare for the benefit of which the laws of war were invented.[5]

Megret argues that the modern law of war tends to promote a certain model of legitimate violence – one in which the sovereign state is the only legitimate dispenser of violence, and in which a professionalised, alienated army is the main exerciser of this violence; thus international humanitarian law aided in ‘the spread of the West’s own model of centralized, industrialized violence – essentially the fabrication of a dehumanized war machinery – to the rest of the world’[6].

What these brief considerations might suggest to us is that the laws of war – and by extension international criminal law – tend to promote a mode of warfare which is ultimately favourable to imperialist nations. In doing so it legitimates this particular way of fighting, and does very little to inhibit their chosen methods of warfare. Clearly, and bearing in mind these issues, the left ought to at least be wary of invoking these rhetorical flourishes, as they may accidentally be legitimating that which they seek to condemn. This is not to say however, that there is nothing of value in international criminal law, certainly it cannot be denied the left ought to unequivocally condemn torture, mass slaughter, the deliberate targeting of civilians etc. Surely, these ‘good’ points might – to some degree – outweigh the problems I have just flagged up. To address this problem I now intend to look deeper – at the material coordinates of international criminal law and the problems these coordinates bring.

International criminal law is first and foremost a matter of individual criminal responsibility. Thus in any given invocation of international criminal law some individual is held as being responsible for its violation. Immediately, for any Marxist (if not necessarily any person on the left) this raises problems. Let us take – for example – the question of torture (as in Abu Ghraib). Marxists don’t just see torture as resulting from the arbitrary preferences of individuals, instead we argue that a given number of social and economic processes give rise to individual propensity to torture. So we would look to economic alienation and disenfranchisement, certain cultural mores, the pressures of the war effort etc., we might still look at the ‘individual’, but we would see the individual as posited by and situated in these social processes. But international criminal law cannot and will not do this; it necessarily see the individual as abstract and isolated from these broad process. This is because criminal law centres on the notion of individual responsibility, any system which sees the individual’s responsibility as its central mode of liability simply cannot widen its gaze (except possibly when mitigating sentences). As Marks et. al. note (in an absolutely brilliant article which ought to be read for the questions it raises), this model mirrors certain archetypical ‘bourgeois’ models of social action:

In an immediate sense, as noted above, there is an obvious and disturbing symmetry between the activists’ call to try Bush and Blair and the rhetoric used to justify the war in the first place: in both cases the central idea is that this is all about the actions of an evil clique, or even a single evil man.[7]

It might be argued that international criminal law has developed numerous techniques that attempt to emphasise the collective dimension of international criminality (joint criminal enterprise, planning etc.) and to some degree this is true. But this misses the broader point. International criminal law always deals with isolated acts. In this I don’t just mean that every court case deals with an individual situation (although this is relevant). I also mean that international ‘crimes’ are by their very nature individualised, particularised acts which are separated from their broader context. Thus, one is tried for torture, which may or may not be part of a systematic regime, but it is always for this act of torture, this system of torture. In this way international criminal law always seems to deal with ‘exceptional’ or ‘spectacular’ situations, as opposed to structural ones. As Susan Marks notes this ‘exceptionalism’ often seems to become ‘justificatory’. In abstracting events and individuals from context and then condemning them, international criminal law tends to portray the incidents it deals with as resulting from the ‘bad behaviour’ of ‘bad apples’:

In all the fervent apologies tendered by the United States Administration, a very great deal was left out. The events at Abu Ghraib were cabined, and firmly detached from related and overlapping concerns. In this way a gesture of self-inculpation was turned into a gesture of self-exculpation, an avowal of responsibility for some matters into a disavowal, and an implicit claim to justification, in respect of all those other matters. Perhaps we might characterise the Administration’s apology for the events at Abu Ghraib as a kind of inoculation, immunising the United States authorities from criticism for everything else. Yet that ‘everything else’ was the context in which those events became possible.[8]

Thus, in calling Bush or Blair a ‘war criminal’ it seems like we invoke a host of assumptions. Firstly, there is the fact that we target these individuals as ‘war criminals’, this seems to imply, on some level, that what is important is their responsibility. But what about the rest of it? Marxists don’t believe that the Iraq war (or any other war) was carried out solely on the command of certain ‘irrational’, ‘stupid’ or ‘evil’ individuals. In invoking this label, the left may be unwittingly emphasising the wrong things. The real problem with this is that such a strategy may be positively counterproductive, the context is everything, we can only stop torture, war etc. insofar as we understand its causes and deal with them. By ignoring context, but elevating the individual, we may actually be failing in our duty.

I would further argue that these considerations are only effects of a deeper problem. International criminal law, as with all law, is rooted in the social relationship of commodity exchange. As in all law, abstract, formally equal individuals form its fundamental contending agents and these abstract, formally equal individuals are thrown up in commodity exchange. And herein lies another problem. In the international sphere, imperialism is the specific form capitalism which gives rise to the legal form. Does adopting a form thrown up by imperialism to oppose imperialism make sense? In limited circumstances I would argue (more fully, elsewhere) it does. But here, as with the above considerations, we can see that all international criminal law allows us to oppose is specific imperialist actions. We cannot understand the context, reasons for and determinants of these actions, nor can we oppose imperialist violence itself (indeed, international law leads to the dreadful fantasy of the clean, sterile war – the legal war, which remains within the bounds of international law, which the left must nonetheless oppose).

Hmm, this was a bit messy, but it’s kind of what I think generally, so I’ll let it stand.

[1] Danilo Zolo, ‘Who is afraid of punishing aggressors? On the double-track approach to international criminal justice’, (2007) 5 Journal of International Criminal Justice 799, at 804

[2] Chris Jochnick and Roger Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’, (1994) 35 Harvard International Law Journal 49, at 58

[3] A.P.V. Rogers, Law on the Battlefield (2004) Manchester University Press, at 17

[5] Ibid., at 28

[6] Ibid., at 37

[7] M. Craven, S. Marks, G. Simpson and R. Wilde, ‘We Are Teachers of International Law’, (2004) 17 Leiden Journal of international Law 363, at 372

[8] S. Marks, ‘Apologising for Torture’, (2004) 73 Nordic Journal of international Law 365, at 380