No Peace Without Justice?Individualisation and the Deterrent Effect of International Criminal Law

Introduction

“Crimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced” - International Military Tribunal (Nuremberg) at p. 41.

The above quote from the International Military Tribunal at Nuremberg, which prosecuted Nazi officials for their role in the horrors of the Nazi regime, highlights that international criminal law strives to focus on the individual. This approach has continued to be implemented with the development of international criminal law into the 21^st century, demonstrated by the adoption of the Rome Statute and the foundation of the International Criminal Court (ICC) in 2002. The ICC has jurisdiction over international crimes, including war crimes, crimes against humanity, genocide and aggression (Rome Statute of the International Criminal Court, 2002). This article problematises the focus on the individual in international criminal law by highlighting the ways in which it misses crimes committed through bureaucracy, how leaders serve as an alibi for the state at large, and how it does not address the structural change needed for a lasting peace. Since the crimes are politically motivated and the structural conditions, such as socio-economic inequalities, remain intact, the deterrence rationale for international criminal law becomes weakened, as the political environment which allowed these crimes to take place in the first place has not been called into question. Failing to address the historical and political context in which the crimes occurred might allow others to commit these crimes in the future. Collective responsibility has been theorised in this context to address these shortcomings.

No Peace Without Justice

Emerging from the end of the Second World War, the purpose of international criminal law was to ensure accountability for international crimes and, more broadly, to save future generations from mass atrocities (Frédéric Mégret, 2019). Judge Robert Jackson’s comments at the Nuremberg trial reflected a hope that future generations would be redeemed from mass atrocities and that the law would be the vehicle through which the mantra of “never again” would be realised (Douglas Guilfoyle, 2016). The sustained, underlying theory is that if international criminal law fulfilled its function, peace would ensue (Frédéric Mégret, 2019). This theory has recently come under attack as global conflicts escalate and adherence to international legal norms has dwindled.

Crimes Through Bureaucracy and Leaders as Alibis

International criminal law’s focus on individuals fails to capture how bureaucratic officials commit crimes (Karen Engle, 2015). Top-ranking officials can reward violence perpetrated by their state officials or operate through a network of informants. For example, Saddam Hussein exercised his power in Iraq through a sophisticated system of security services, special courts and informers (Mark A Drumbl, 2005). Relatedly, focusing on one individual leader can relieve the state of the responsibility for the crime. The state can use the leader as an alibi, and so individualised guilt can contribute to “a myth of collective innocence” (Mark A Drumbl, 2005). If the people can point to the ‘one bad actor’ and highlight their guilt and accountability for their actions, the state will thus be relieved of their part in the conflict. Koskenniemi has developed this alibi theory in relation to the Nuremberg Trials, arguing that Nazi actions did not occur through specific incidents by individuals, but through “obedient servants of a criminal state” (Martti Koskenniemi, 2002). More broadly, the individual focus is not just a characteristic of international criminal law, but also international law more generally. It reflects international law’s tendency to develop in response to crises and specific incidents, failing to address larger systemic issues such as economic inequality (Hilary Charlesworth, 2002). Violence stems from institutions, and since the criminal law does not address structures, it does not address the root causes of the conflict.

Deterrence

One of the rationales for international criminal law is its deterrent effect, positing that perpetrators of international crimes are deterred by criminal punishment. At the time of the International Criminal Tribunal for the Former Yugoslavia, scholars such as Akhavan argued that the Tribunal would internalise the expectation that individuals would be held to account for their violations of international law (Payam Akhavan, 1998). The implication is that leaders’ motives are individualistic and that they are deterred by the potential individual punishment. This theory is often inadequate in the context of political conflicts and international crimes, the motives for which are deeply historical, ethnic, and religious. In these contexts, political decisions are carried out with the belief that their act is righting a wrong of the past, an injustice carried out against one of their ancestors. 

Guilfoyle puts forward the communicative theory of criminal justice, which states that a person may be held to account by the moral community of which they are part (Douglas Guilfoyle, 2016). He philosophises that an individual will feel remorse as a result of breaking a moral rule in their community, and will therefore accept the punishment. Upon application of this theory, it is not clear why the perpetrator of an international crime should accept moral authority from the “elusive international community” (Martti Koskenniemi, 2002). This theory favours localised justice mechanisms and rejects the international community’s moral influence.

A closely linked rationale of international criminal law is the belief that criminal punishment incapacitates the leader and physically prevents them from reoffending (Douglas Guilfoyle, 2016). Writing about the Eichmann Trial  in Israel, Hannah Arendt brought to our attention that the criminal law lens convinces us that “if we remove the bad actors, we deal with evil”(Hannah Arendt, 1963). Removing leaders, however, does not remove the structures which put them there, or allowed the crimes to occur (Douglas Guilfoyle, 2016). Cognisant that the crimes are politically motivated, the political ideas and ideology which motivated the initial crime do not simply go away. This inevitably leaves it open for others to commit the same crimes in the future.

Collective Responsibility

So, what is the solution? Empirical data shows that victims and their families want accountability for human rights violations, supporting the retributive role of international criminal law (Kai Ambos, 2009). In recognition of this, accountability must form part of the mechanism for peace in response to human rights violations. As evidenced in this article, the individualisation in international criminal law fails to address the structural problems that hinder the achievement of peace. This calls into question the ability of non-criminal mechanisms to address structural problems. 

Drumbl advanced a “middle ground approach” between collective guilt and collective innocence, highlighting that whilst criminal trials focus on binaries of guilty and innocent, law and politics can offer mechanisms in which all perpetrators may be held accountable for the benefit of all victim groups. He provides examples such as mandatory community service, redistributing wealth, lustration, embargoes and trade restrictions. These broader mechanisms may address some of the structural problems which caused the conflict or created the environment in which the crimes occurred and may ultimately, and hopefully, lead to a lasting peace.

Conclusion

The development of international criminal law over the last thirty years has been hailed by many as a great success in ending impunity for international crimes and serving accountability for victims of human rights violations (Mark S. Ellis, 2014). However, the individual focus reveals shortcomings in attaining a lasting peace. Understanding the limits of international criminal law is vital to identifying adequate justice mechanisms, and addressing structural causes is the best route forward for a lasting peace. Collective responsibility is one avenue to achieve this. 

In watching the Eichmann trial, Arendt wrote: 

“The sad truth is that most evil is done by people who never made up their minds to be or do either good or evil”.

Witnessing the banality of evil, Arendt opined that we don’t live in a world with a few bad actors, whom, if we remove, we will have dealt with evil.

In repeating the mantra “never again”, it is pertinent to ask, is individual criminal responsibility the best way forward?