Crime and punishment: holding states accountable.
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. (1)
The development of international criminal law since Nuremberg has reinforced this judgment. The emergence of the human rights regime and the codification of the Geneva Conventions made individuals legitimate agents in the international system. With the creation of international criminal tribunals for the former Yugoslavia (1993) and Rwanda (1994) and the International Criminal Court (1998), the legal agency of individuals was subsumed under an international criminal justice system. (2)
According to this regime, individuals can be accused of such crimes as genocide, waging wars of aggression, and a host of other violations. However, while it is individuals who pull triggers, commit rape, and build gas chambers, they do not do these things qua individuals. In warfare, they act as, and through, institutional structures, structures that we speak of as agents. Thus, while individuals have been rightfully accused of and punished for these crimes, it seems appropriate that states be held responsible as well, for only an organized community has the means to inflict violence on such a large scale.
This is not to say that we should only punish states: individuals can and should be held responsible and punished for violations of international law. The argument, rather, is that individuals should be held responsible together with states, and that an institutional arrangement needs to be constructed that can undertake both kinds of punishments.
International law is largely about what states can and cannot do. States continue to be the primary agents in the international system, meaning that they are responsible for much of what happens in that system, and such state responsibility has long been a subject of international law. Yet the devastating effects of the Versailles settlement following the First World War, by which Germany was burdened with such overwhelming reparations that its economy ultimately collapsed, made many skeptical of this regime. (3) Nevertheless, international judicial institutions, especially the International Court of Justice (ICJ), established in 1945, have continued to rely on the concept of state responsibility, which "provides the foundation of the law of treaties and constitutes the most basic part of general international law." (4)
But holding states "responsible" does not necessarily mean that they are responsible for crimes. This important distinction became the centerpiece of a debate among members of the International Law Commission's Committee on State Responsibility, which ran from 1956 through 2002, one of the longest-running committees of the ILC. (5) The committee began work under the leadership of F. V. Garcia Amador of Cuba, (6) who focused its discussions and reports on injuries to aliens, leading to a civil law--like approach to the topic. The Italian jurist Robert Ago, who eventually replaced Amador in 1963, criticized this approach. Ago argued that a civil law approach--one focused on repairing a contractual relationship that had been broken rather than on criminal law, which focuses on penalizing the guilty--would fail to capture many of the most egregious violations committed by states. Ago's work resulted in a draft of thirty-five articles in 1980, which was cited by scholars and courts and which included, for the first time, an article describing "international crimes of state." (7) The remaining articles were drafted during the 1980s and early 1990s, resulting in a full draft in 1996.
These draft articles were then submitted to a full reading during the years 1997-2001. The commission, now led by Special Rapporteur James Crawford, had set for itself a goal of finalizing the draft articles by 2001. The 1996 draft articles were divided into two parts, the first focusing on the origins of state responsibility and the second on the consequences. The idea of an international crime is defined in Article 19: "An international wrongful act which results from the breach by a State of an international obligation so essential for the protection of the fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime." The text goes on to list certain violations as deserving of falling into the category of crime, including aggression, colonial domination, slavery, genocide, apartheid, and "massive pollution of the atmosphere or the seas." (8) These were not meant to be the only crimes, but simply a list of potential ones.
State representatives were invited to comment on the drafts beginning in 1996, and much debate arose over Article 19. The Czech Republic made a compelling case for keeping the concept of crimes in the text but avoiding the distinction between civil and criminal law: "The law of international responsibility is neither civil nor criminal, but is purely and simply international and therefore 'specific.'"(9) Denmark, presenting an argument on behalf of the Nordic countries, laid out the logic behind retaining the concept of an international crime:
If, for instance, one looks at the crime of genocide or the crime of aggression, such crimes are, of course, perpetrated by individual human beings, but at the same time they may be imputable to the State insofar as they will normally be carried out by State organs, implying a sort of "system criminality." The responsibility in such situations cannot in our view be limited to the individual human being acting on behalf of the State (10)
Italy, Mongolia, Greece, and Uzbekistan also argued in favor of retaining the concept of a state crime.
The opposing view, that the concept should be deleted from the drafts, arose from a variety of states. France, Ireland, Japan, the United Kingdom, and the United States submitted the fullest explanations as to why this provision should be deleted. The bulk of the arguments centered on the fact that crimes can only be committed by persons, with more than one quoting from the Nuremberg trials to this effect. The Irish Republic's statement gives the clearest version of this position:
In our view, criminal liability is essentially about individual moral responsibility, and the best way forward in international law is to try to get universal agreement that particularly heinous behavior on the part of individuals should be criminalized and to establish the necessary procedures and institutions at the international level to ensure that human beings are called to account for such behavior. It seems to us that this is what the current proposals for the establishment of an international criminal court are all about and that this is the best way of proceeding in the matter. (11)
The British reiterated this position, adding a further argument that "by establishing the category of international crimes the danger of polarizing moral and political judgments into a crude choice between crimes and delicts is increased." (12)
In his report of May 11, 1998, Special Rapporteur Crawford agreed that the concept of an international crime makes sense when looking at the international system as a whole:
It would be odd if the State itself retained its immunity from guilt. It would be odd if the paradigmatic person of international law, the State, were treated as immune from committing the very crimes that international law characterizes as crimes in all cases whatsoever. (13)
But Crawford goes on to argue that the draft articles do not spell out the institutional mechanisms of what would follow from defining certain actions as crimes. The articles say nothing of such issues as investigation, trial, proper sanctions, and "how a state could work its way out of the condemnation of criminality." (14) As a result, in his report to the commission in 1998, Crawford recommended that the idea of a crime be stricken from the draft articles, but suggested that it may be worth pursuing the concept in a separate context. (15)
This recommendation and the objections of various state representatives resulted in a rather different article in the 2001 Draft Articles, which were eventually approved by the ILC at its 2002 meeting. Article 40 stipulated that states might commit "serious breaches" but not crimes. But the commentary on this article suggests that it retains some element of state criminality by employing the idea of a peremptory norm of general international law. Such norms are those owed to the international community as a whole. Moreover, the commentary goes on to list many of the specifics that were cited in the previous Article 19, including aggression, preventing self-determination, and violating human rights. (16)
This brief history reveals two types of objections to the idea of state crime, what I will call the philosophical and the institutional. The concern raised by the Irish Republic in its statement, which echoes the Nuremberg judgment quoted at the beginning of this essay, is a philosophical one, which comes in two parts: first, that abstract entities do not commit crimes, only people do; and, second, if people are not accused of such crimes, deterrence will not function properly.
Before responding to these objections, I must emphasize the complexity of responsibility as a philosophical concept. As applied to individuals, the concept of responsibility has generated debate ranging from questions of free will to causality to the importance of social roles. (17) These general philosophical issues become even more complicated when group or collective responsibility is at issue. (18) Some of the material on collective responsibility has explored the question of state or national responsibility, although generally this has not been the case. (19) From these various debates, a few points are relevant for my argument: First, there exists a range of meanings for responsibility. One basic distinction is between being responsible for past actions and being responsible for future actions, the latter meaning being closer to something like a duty or obligation. (20) For this essay, I am interested in the past, since criminal responsibility is about what has already occurred. Second, this essay assumes that responsibility is essential for normal social and political interactions, a point famously made by Peter Strawson. (21) Indeed, as I will go on to argue, punishment is essential for political structures to function, but underlying this is the importance of responsibility as a necessary part of normal moral discourse.
But let me return to the objections identified above, starting with the problem that abstract entities cannot commit crimes. A possible response to this objection is hinted at in Crawford's remarks above. He notes that the state is the "paradigmatic person" in the international system. A person is not a natural category, but rather a category of existence granted by law or societal norms. Especially when it comes to being a person that can act, or an agent, such entities must be constructed. The Anglo-American, or common-law, system has long recognized corporate entities as persons that can be held responsible for certain actions. (22) Corporate persons "act" in a legal system through their policies, which require advance deliberation. States are clearly persons that can act in their system. (23)
All of this should be obvious to those involved in the project of creating articles on state responsibility. Indeed, it does not appear that the objection articulated at Nuremberg and echoed by the Irish representative is based on denying the fact that states are agents that can be held responsible. Rather, their objection is that responsible states might commit wrongs but cannot commit crimes. Yet this objection does not stand up under scrutiny either. The difference between a wrong and a crime, at least in domestic criminal law, is based on three primary criteria: legality, actus reus, and mens rea. (24) The principle of legality states that an individual may not be accused of a crime unless it has been defined by a legal system. This principle prevents retroactive prosecutions and the abuse of the power of political authorities. The second principle, actus reus, stipulates that only actions (or failures to act), not character traits, can count as crimes. That is, an individual may not be accused or convicted of being a potential danger to society; an actual crime must have been committed. The third criterion, mens rea, determines that individuals must intend to commit a crime. This criterion is central to our understanding of crime, yet it is often the most contested as well. The plea of insanity, for instance, is a way to claim that an individual may have committed an action but did not intend to do so.
These three criteria help in understanding how a state can commit a crime. First, the criterion of legality is essential for constituting states as responsible agents. While hard-core realists might resist it, almost everyone agrees that international law provides a set of rules that make global politics possible. One of its most important functions is to constitute the legitimate agents of the international political system. Since the heyday of positivism in the nineteenth century, states have been considered the primary agents of international law. In fact, it is only since the mid-twentieth century that individuals have attained a type of agency that matches that of states. (25) The two crimes I consider below, aggression and genocide, are conceptually better attributed to states than to individuals, in that they require large-scale policy initiatives rather than individual actions--unlike, say, crimes against humanity or war crimes, which can be committed by individuals. In fact, until the change in 2001, the 1996 draft Article 19 was quoted by jurists and courts, suggesting that it would not be a radically new legal proposal to identify these crimes as among those that states can commit. In fact, it would be possible to continue to hold individuals responsible along with states, thus not altering the international legal structure too drastically.
The other two criteria of criminality--actus reus and mens rea--also help clarify what it means for a state to commit a crime. Actus reus and mens rea should really be considered conjointly, in that sometimes an action cannot be described without reference to the intentions that constitute it; for instance, the exact same action of using a knife to cut someone's body can be legal (if I am a surgeon) or illegal (if I am a murderer), with my intention being the main thing that differentiates the two. These criteria can be fulfilled when a state acts through its policy-making structures. States that have a deliberative body that determines not only instrumental actions but also overarching political aims can be said to have intentions. (26) Importantly, for a state to be considered an agent that can undertake actus reus with amens rea, it would need to be participatory in its decision-making structure rather than dictatorial. That is, when a dictatorial regime commits a crime, it makes more sense to attribute that crime to the head of state, in that the policy results from his individual intention. If a state is democratic and initiates a policy that leads to a crime, it makes more sense to attribute that crime to the state qua agent. It is important to clarify here that attributing a crime to a state does not mean that each individual member of that state is guilty of the crime. Rather, the point is precisely that crimes can be attributed to states without attributing them to individuals. This distinction is critical when we consider punishment for state crimes.
These points provide a response to the first part of the philosophical objection, that abstract entities cannot commit crimes. The second part of that objection, that only by punishing individuals will crime be deterred in the future, also does not stand up under further scrutiny. First, it is not clear that the deterrent function has been particularly effective in terms of punishing individuals. (27) The role of deterrence in punishment is explored in more detail below, but suffice it to say that for deterrence to function effectively the punishments meted out to individual criminals must be clear and consistent and well known to all members of a society. While it might be difficult to ensure that all figures of authority (political, military, bureaucratic, nonstate actors, and so forth) are aware of the punishments to which they can be subject if they violate the rules of the system, it does seem more plausible to imagine that if there are punishments to be inflicted on states, this fact would be more widely known given that such punishments would be more far-reaching than those inflicted upon individuals. In addition, they need only be known by the leaders of states--and thus can be communicated through diplomatic channels and international forums such as the United Nations.
The other objections were those raised by James Crawford--what I call institutional objections. These Objections focus on the fact that the things we normally assume play a role in criminal proceedings--gathering evidence, arresting a criminal, holding a trial, and actual punishment--do not seem to make sense when it comes to states. Yet this seems a strange objection for international lawyers to raise. The International Court of Justice has since its founding provided a forum in which states submit their disputes with other states. It is an appeals court that treats states as legal agents with rights and responsibilities. In addition, other judicial institutions have similar proceedings, such as the European Court of Human Rights. (28)
Crawford's concern about states working themselves out of criminality is an important point as well. Clearly, states cannot "serve their time" and then be released. A punishment inflicted upon a state must have a clearly defined purpose and duration. I return to this below in discussing punishment, but it is important to note that this objection can be addressed in the form of the punishment that is imposed.
A more cynical view is that this objection arises more from concerns of real-politik than from actual legal or philosophical ones. Some of those objecting to the idea of state crimes are those states that are democratic and could thus be subject to a finding that the state as a whole is guilty of a crime. Moreover, the presence of the United Kingdom and the United States among those objecting to the idea of state crime further suggests that states that undertake military adventures in violation of international law might well be subject to potential criminal proceedings. According to Crawford, "the idea of international crimes as expressed in the draft articles was divisive and had the potential to destroy the project as a whole." (29)
It would appear, then, that the objections to attributing crimes to states are not insurmountable. In fact, they appear to be rather weak when one considers that the concept of a state crime arose logically from deliberations about state responsibility. That is, while the final articles did not include the idea of a state crime, the process that produced them seems to have laid the conceptual foundations not only for finding states responsible but for making them potentially criminal. Before exploring exactly what sort of crimes states might be accused of, let me briefly turn to the concept of punishment, which raises further theoretical and institutional questions.
If states can commit crimes, can they be punished? The ILC committee that drafted the Articles on State Responsibility avoided the concept of punishment, as do most international lawyers. For many of the same reasons that states are not seen as criminals, so they are seen as exempt from punishment. Perhaps one of the most important reasons is the lack of an institutionalized authority recognized as possessing the legitimate power to sanction such punishment. I return to this point below, but before doing so, it is important to clarify the function of punishment once an agent is found guilty of a crime.
A punishment is the infliction of harm in response to a violation of a norm. That infliction must come from a legal order or institutional framework. The overriding purpose of punishment is twofold: to return the community to the balance that existed prior to the violation of the norm and to prevent such violations in the future. But the decision to inflict harm in order to halt that violation is a contestable practice, since the infliction of harm is "something we regard as morally prohibited under normal circumstances." (30) Much of the philosophical literature, then, has been devoted to justifying this practice, usually by means of the concepts of deterrence and retribution. (31) Deterrence is the idea that by punishing agents who violate norms, future violations will be prevented. It is premised upon the assumption that the individual being punished may deserve the harm inflicted, but the more important social goal is as a warning to others. Retribution is the "idea that wrongdoers should be 'paid back' for their wicked deeds." (32) It differs from deterrence in that it does not seek to use the agent to teach a larger lesson, but attempts to balance the scales within a society. Retribution is sometimes confused with vengeance or revenge; it differs in that a retributive action is not an attempt by a single agent to satisfy only his or her personal desires, but is designed to restore a balance to the community and ensure that justice prevails. (33)
The philosophical literature on punishment has sought to develop these justifications, especially in combination with each other. Critics of the general deterrent or utilitarian justification argue that the actual criminal might not be punished according to this logic. Instead, a utilitarian justification could lead to the punishment of random individuals whenever a norm is violated. (34) A related problem is that a utilitarian or deterrent punishment, while actually focusing on the individual agent who committed the violation, might engage in excessive forms of violence to make a point. For example, one might execute individuals for jaywalking according to an extreme form of utilitarianism or deterrence. (35) Others have leveled important criticisms at the retributive model. While retribution might address the problems raised by the utilitarian model--that is, it can better connect the agent to the violation--critics have suggested that it "confuses the irrational thirst for vengeance with a rational ground for punishment." (36)
John Rawls, in a paper originally delivered in 1954, suggests a novel way to understand punishment that is helpful for considering how states can be punished. Rawls begins his essay by noting that there exist two types of rules: those that justify a practice as a whole and those that justify a particular application of that practice. He uses this distinction to make the case that punishment can be justified in both utilitarian and retributive ways. The practice of punishment as a means of enforcing justice in a society--that is, as an institution--is utilitarian. But the particular application of punishment in specific cases--the action of punishment--is best understood as retributive. One way to see this distinction is through the different roles played by a legislator and a judge:
One can say, then, that the judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future. The justification of what the judge does, qua judge, sounds like the retributive view; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view. (37)
By distinguishing actions and institutions, and placing both in the context of the justifications for punishment, Rawls demonstrates the centrality of a larger, coherent institutional framework for the practice of punishment.
Rawls's essay suggests that institutions that punish must provide deterrence. This means they must be clear and consistent in their application of the rules. It also means that the system must be able to communicate those rules and the associated punishments. At the international level, this means the institutions that punish must be capable of clearly communicating their rules and sentencing judgments to a wide range of agents. Rawls's essay also suggests that punitive actions must be retributive. This means, for Rawls, that the actions must locate the responsible agent and ensure that the punishment has some parity with the crime. It is important to note that retribution here does not mean an exactly equal infliction of pain; "an eye for an eye" is a form of revenge, not retribution. Retribution means ensuring that the responsible agent receives a legitimate punishment.
One further point about punishment deserves consideration. Many definitions of punishment assume that it must be undertaken by a sovereign authority; when it is undertaken by individuals, what looks like punishment is actually vengeance. This is an important concern, which I have addressed in more depth elsewhere. (38) Briefly, the focus on institutions in this essay privileges institutions over sovereign authority. Because the international system is currently anarchic, and does not appear to be moving toward a world state any time soon, the focus for a workable mode of punishing states should be on designing institutions that prevent any one state from dominating them. I would also argue that punishment need not necessarily be undertaken by a sovereign authority, as various theorists have argued. (39) Instead, an institutional framework can provide a legal structure and a structure that can punish. The proposal in the next section suggests how this might look within the current international system.
Two institutions that currently exist in the international system provide a possible framework for trying states and, if they are found guilty, punishing them: the International Court of Justice and the UN Security Council. As the judicial organ of the United Nations, the ICJ's mandate is to make judgments on disputes between states and offer advisory opinions when states or other international organs request them. When a judgment is passed, states are obliged to abide by it, in that they have signed on to the treaty creating the court (that is, the UN Charter). (40) The court has ruled that states need to pay compensation or reparations in certain cases, although there is some question as to whether or not it has "passed judgments" that amount to punishments. Moreover, it has never issued a sentence that directs one state to use military force against another. (41) The court also takes quite a long time to deliberate on its cases, having made relatively few judgments in its half century of existence.
The Security Council currently functions both as a quasi-judicial institution and an executive one. That is, it makes judgments on issues in the international community and then imposes punishments (or sanctions) when it deems appropriate. (42) In fact, the combination of these two functions in one institution goes against the essence of constitutional government, which is intended (in part) to protect against unfair accusations of crime. By combining judicial and executive functions in the Security Council, the current international order does not reflect a constitutionally legitimate structure. (43)
By combining the functions of the ICJ and the Security Council, it is possible to construct an institutional arrangement for investigating whether states are guilty of crimes and then passing judgments on their punishment. When violations of international legal norms occur, those whose rights have been violated can bring their case before the ICJ. This would require, of course, that the statutes of the ICJ be amended so that it does not simply hear cases brought by states; substate groups would also need to be recognized parties before the court. Another alternative would be to create an office of a prosecutor for the ICJ, such as the International Criminal Court (ICC) currently has. This individual can bring cases before the court either on his own initiative, at the request of the Security Council, or by another party (for example, a state or NGO). It is important to note that the creation of the office of the prosecutor in the ICC was one of the issues that resulted in the United States refusing to join the new court, so its feasibility is certainly questionable. At the same time, however, it would allow the ICJ to hear a wider range of cases than in its current structure, where only an aggrieved state can bring another state to trial.
Once the court has made a judgment, it would then pass its sentence and expect that the Security Council would enforce it. Carrying out that sentence might start with economic sanctions or reparations, but it could progress to the level of coercive military actions, such as the use of aerial bombing against targets identified as central to the state, not unlike the NATO-led attacks on Serbia following the crisis in Kosovo. The particular punishment could result from specific sentencing guidelines offered by the ICJ, or it might be up to the Security Council to decide the proper measures of action. Of course, it is inconceivable that the Security Council would ever completely surrender its judicial authority to the court, but it is far more probable that the council would be willing to add to its functions the task of carrying out judgments passed by the ICJ. In fact, there is a parallel here in the construction of the ICC, in that the Security Council was specifically given the new task of recommending cases to the court when the ICC was created.
Crime of Aggression
Two brief examples demonstrate how such an institutional arrangement might function. The first is the crime of aggression. Although there does not exist a clear definition of aggression (with the closest approximation appearing in the UN General Assembly's 1974 consensus resolution on the Definition of Aggression), (44) for the purposes of this essay it can serve as an example of the kind of crime that a state can commit and for which it can be punished. One might argue that although there does not exist a clearly defined convention outlawing aggression, the progressive development of international law during the twentieth century has most certainly pointed toward outlawing the use of military force for aggressive purposes. The Kellogg-Briand Pact of 1928 and the UN Charter of 1945 are perhaps the clearest expressions of this sentiment.
One important element of the crime of aggression that deserves consideration here is that aggression cannot really be committed by an individual, but, of necessity, must be committed by a state. While one need not accept a Clausewitzian logic in which only states wage war, it certainly does not make sense to say that an individual can wage a war, Wars, by necessity, are waged by groups. In the current international system, the state clearly wages war better than most other organizations, not least because it is the only institution in the current international system that can legitimately use force.
This definitional problem would need to be resolved before any institution could bring charges against a state. Once this issue was resolved, however, the institutional arrangement described above could function quite well. The ICJ would need to determine if a crime had been committed, and the Security Council would then undertake the appropriate punitive measures. This would allow the institutional response to aggression to be both deterrent and retributive. It would be deterrent in that there would be a formal and open "trial" by the ICJ that would reveal the truth of the matter to the international community; it would be retributive by ensuring that the correct agent was punished. It is even conceivable to have two parallel trials take place, one for culpable individuals and one for the state. There is nothing in this institutional arrangement that would prevent both types of agents from being tried concurrently.
In fact, such an arrangement has been suggested earlier. Hans Kelsen, one of the leading positivist legal theorists of the twentieth century, made a similar argument in his explorations of international law. For Kelsen, "law is a coercive order." (45) Kelsen argued that the very nature of legal norms and the rules they create include punishment, or what he called "sanctions"; that is, a law is not a law unless its violation leads to a sanction. This approach to law led Kelsen to posit that punishment can occur in international law as well as in domestic law; and he was particularly interested in how the international community responded to the crime of aggression or the waging of an unjust war. For Kelsen, sanctions in international law can include military force:
The sanctions of international law, especially war, it is true, are usually not interpreted as punishments; but they have nevertheless, in principle, the same character as the sanctions of criminal law--forcible deprivation of life and freedom of individuals. (46)
Kelsen was well aware that there exists no clear executive authority to issue such punishments. Rather than propose a world government, Kelsen's solution to this problem is to construct an institutional order in which a judicial body is the primary institution. During World War II, Kelsen gave concrete specificity to such an institution in a short monograph. (47) He argued that rather than an executive or even legislative institution, the international community needed a judicial institution that could adjudicate among competing claims in the international system and, more important, make judgments as to when a violation of the law has occurred. Once such decisions were made, this court would authorize the punishment of the violating state through military means, if necessary. He criticized the League of Nations for placing the legislative function before the judicial one, leading it to issue normative statements rather than to make judgments grounded in existing international law. (48)
Kelsen is here articulating a version of collective security grounded in an institutional framework. The punishment that would result from the waging of aggression would need to be similar to collective security, especially in order to fulfill the retributive function. For Kelsen and others writing in the mid to late twentieth century, the only real collective security response to a war of aggression was war. This should, indeed, remain a possible punishment for the crime of aggression. Current military strategy, however, adds a further punitive tool for the international community to consider: coercive bombing.
Theories of the coercive uses of military force arose in the mid-twentieth century when American policy-makers sought to develop ways of using force for political objectives without generating large-scale conflict with the Soviet Union. (49) One recent treatment of coercive diplomacy suggests how it might be used to punish states found guilty of aggression. Daniel Byman and Matthew Waxman in their analysis of this strategy for U.S. policy suggest that using coercive diplomacy requires clarity on two levels, the mechanisms and instruments. Mechanisms are "the process by which the threat or infliction of costs generates adversary concessions." (50) They list five potential mechanisms that might be targeted in a state: threatening core supporters of a regime; creating widespread unrest; killing or harming the regime itself; weakening the economic or social fabric of the country; and harming the state's military. Instruments are the actual tools used to inflict harm. Byman and Waxman list five instruments: air strikes; ground force invasion; threat of nuclear war; economic sanctions; and support for insurgencies. In their analysis, they review these mechanisms and instruments to determine which are most effective for U.S. strategic purposes in the twenty-first century.
For the purposes of this essay, understanding these mechanisms and instruments reveals how they might be used to punish states. In considering which mechanism is the most appropriate, it would be necessary to first distinguish the type of state that has committed a violation, with perhaps a different set of responses for a democracy than for a dictatorship. Indeed, distinguishing punishments on the basis of the type of regime suggests yet a further potential level of responsibility and punishment--that it might be possible to imagine a world in which not only individuals and states can be held responsible but regimes, as a distinct category. (51) Obviously, between a single dictator and a participatory democracy there are a variety of regimes run by a small group of individuals, and these might be tried before a different type of court and punished as well. This idea does nothing to undermine the general point of this essay, but only suggests that special care must be taken in determining the level of responsibility for certain types of violations.
Admittedly, these suggestions regarding the best means for punishing states raise many more issues than they resolve. (52) It is important to clarify that unlike the coercive diplomacy literature, the point of these tactics is not simply to change behavior but to impose harm in response to the violation of a norm. Such actions would be both deterrent, in that they would communicate to the larger international community, and retributive, in that the specific state committing the crime would be forced to stop. Perhaps the closest real-world approximation to this use of force is the allied bombing raids in Serbia over the violations of human rights in Kosovo. Crucially, the strongest objection to this use of force was that it was undertaken without any globally recognized institutional sanction. Had the institutional structure proposed here been in effect, the use of military force over Kosovo might have received more widespread support.
Finally, while the use of force to punish as proposed here would ideally limit and control the degree of harm to be inflicted, it could not completely avoid harming "innocents." As in any military campaign, those not responsible for foreign and defense policies suffer. But if it is indeed the case that the international community sees the need to punish those who violate international norms, and if not all crimes can be attributed to individuals, then this structure seems the most plausible. Here, again, the importance of distinguishing individuals, regimes, and states would be helpful in determining both levels of responsibility and modes of punishment. Moreover, it would avoid some of the moral complications raised by economic sanctions, which have often been directed at specific regimes but have inevitably affected whole societies--Iraq under Saddam Hussein being an obvious example.
Crime of Genocide
As with aggression, genocide is a crime that requires state complicity. While individuals have been tried and found guilty of genocide, evidence from Nazi Germany, Rwanda, and Cambodia suggests that the act of genocide requires a large-scale operation beyond the scope of any one individual or even a small number of individuals. (53) One jurist notes that implicit in the crime of genocide is that it be a general or organized plan, something that only a state could undertake. (54) Unlike aggression, however, genocide has been clarified in a number of legal instruments, with the Convention on Genocide adopted in 1948 being the clearest statement.
Perhaps because of the fame of the Nuremberg trials, which found not only government and military leaders but a large number of individual Germans guilty of genocide, there has not been a proposal to treat the crime of genocide as a state crime. Yet, if conceptually genocide can only be committed by a state, or at least with state sanction and assistance, it would seem necessary to label it a state crime. Interestingly, the above-mentioned Article 19 of the 1996 Draft Articles of State Responsibility did list genocide as one of the crimes that states can commit. As with aggression, this crime could be brought before the ICJ and, if a state is found guilty, the Security Council could then enact punishment.
But what punishment would be legitimate for genocide? Recall that a retributive punishment should not be one that inflicts the same sort of harm on the guilty agent as was inflicted on the victim; in other words, it would not be just to kill large numbers of people in response to genocide. Rather, if it is acknowledged that a state can commit genocide, and if a state exists separately from its people, then one logical punishment for genocide would be regime change and lustration. Jens Meierhenrich has recently proposed a framework for how lustration--or the "purification of state institutions"--might function in a postconflict situation. (55) As Meierhenrich demonstrates, undertaking such a policy is complicated by a wide variety of factors. Yet, if there were to be a punishment for genocide, it would not be the death of individual people, but the "death" of the offending state. This would apply equally to democratic or authoritarian states, either of which would be subject to the same punishment. In the case of a democracy, the lustration process would be more complex but, if focused on the state machinery, certainly possible.
Undoubtedly, this punishment might result in the harm or death of individuals who had nothing to do with the policies of the government. As the current situation in Iraq demonstrates all too clearly, any violent regime change leads to the deaths of innocents. The goal of this punitive regime would be to avoid as much death to innocent civilians as possible. As with any use of force in the international system, avoiding such deaths should be a primary goal. Nonetheless, concern with such deaths cannot prevent the use of punitive measures to enforce norms. Indeed, one might argue that the seriousness of genocide demands that punitive measures be employed even knowing there is a significant chance that innocents might die, as regrettable as that is.
This essay has argued that states can be found guilty of crimes and be punished for them. By drawing on law, philosophy, and international politics, I have suggested some ways in which an institutional arrangement might be developed that could undertake this project. I have also briefly suggested how two crimes--aggression and genocide--might be conceived of as state crimes and how states might be punished for those crimes.
Without enforcement measures, rules will deteriorate over time. Self-interested agents, whether they are people or states, will violate rules when it is in their interest to do so. In order to ensure that they do not, especially when they pursue particularly egregious policies, the threat of punitive measures is essential. Indeed, it is perhaps because there has been no fear of such punishment that international affairs continue to be so unjust.
Still, I acknowledge that punishment alone is not sufficient to bring about justice. As the recent execution of Saddam Hussein demonstrated, there are problems associated with achieving justice through punishment. In Saddam's case, the punishment appeared as unjust to some observers, given the role of the U.S. government in shaping the trial proceedings. It also appeared unjust to some because it verged on revenge, especially in the actual execution, when Shia Iraqis taunted Saddam just prior to his hanging. Clearly, punishing states can be subject to the same critiques of unfairness and/or revenge. Injustices will continue to take place in international politics; designing more just punitive institutions at the global level can at least mitigate some of their grosser forms.
(1) International Military Tribunal for the Trial of the Major War Criminals, judgment of October 1, 1946; reprinted in American Journal of International Law 41 (1947) p 221
(2) See M. Cherif Bassloum, Introduction to International Criminal Law (Ardsley, N.Y.: Transnational Publishers, 2003), for an overview of this regime.
(3) Nina H. B. Jorgensen, The Responsibility of States for International Crimes (Oxford: Oxford University Press, 2005), pp. 3-27.
(4) Ian Brownlie, "State Responsibility and the International Court of Justice," in Malgosia Fitzmaurice and Dan Sarooshi, eds., Issues of State Responsibility before International Judicial Institutions (Oxford: Hart Publishing, 2004), p. 12.
(5) The International Law Commission was created in 1948 as part of the United Nations system to help develop and codify international law. It works through committees that develop draft articles on a range of international legal topics, which are then proposed to UN member states for use as draft treaties; see their website at www.un.org/law/ilc/.
(6) James Crawford, Introduction," in James Crawford, ed., The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentary (Cambridge: Cambridge University Press, 2001), p. 1.
(7) Ibid., p. 3.
(8) Ibid., pp. 352-53.
(9) State Responsibility: Comments and Observations Received from Governments, UN Doc. A/CN.4/488, March 25, 1998, p. 53; available at ods-dds-ny.un.org/doc/UNDOC/GEN/N98/099/53/PDF/N9809953. pdf? OpenElement; accessed on March 8, 2004.
(11) Ibid., pp. 58-59.
(12) Ibid., p. 61.
(13) James Crawford, First Report on State Responsibility, Addendum, UN Doc. A/CN.4/490/Add.3, May 11, 1998, p. 7; available at ods-dds-ny.un.org/doc/UNDOC/GEN/N98/128/60/PDF/N9812860.pdf?.OpenElement; accessed on March 8, 2004.
(14) Crawford, "Introduction," in The International Law Commission's Articles on State Responsibility, pp. 18-19.
(15) Crawford, First Report, p. 10.
(16) "State Responsibility: Articles and Commentary," art. 40, paras. 1-9, in The International Law Com mission's Articles on State Responsibility, pp. 245-48.
(17) For various writings on these issues, see John Martin Fischer, ed., Moral Responsibility (Ithaca, N.Y.: Cornell University Press, 1986); and John Martin Fischer and Mark Ravizza, eds., Perspectives on Moral Responsibility (Ithaca, N.Y.: Cornell University Press, 1993).
(18) See Larry May and Stacey Hoffman, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, Md.: Rowman & Littlefield, 1991).
(19) For a recent attempt to explore the concept of national responsibility, see David Miller, "Holding Nations Responsible," Ethics 114 (January 2004), pp. 240-68.
(20) Miller explores the future-oriented nature of responsibility in "Distributing Responsibilities," Journal of Political Philosophy 9, no. 4 (2001), pp. 453-71.
(21) Peter Strawson, "Freedom and Resentment," in Fischer and Ravizza, eds., Perspectives on Moral Re sponsibility, pp. 45-66; reprinted from Proceedings of the British Academy 48 (1962), pp. 1-25.
(22) The continental legal tradition does not see corporate entities as agents in law as much as the Anglo American tradition does; see Bassiouni, Introduction to International Criminal Law, pp. 59-60, for a brief discussion of this point.
(23) Patrick Thaddeus Jackson, et al., "Forum: Is the State a Person? Why Should We Care?" Review of International Studies 30, no. 2 (2004), pp. 255-316.
(24) This section is drawn from Michael Jefferson, Criminal Law (London: Pitman, 1992), an introductory textbook on English and Welsh criminal law. While there are important differences between English, Scottish, and American conceptions of criminal law, they all share the attributes I highlight.
(25) For a description of that evolution in the pages of one influential academic journal, see David J. Bederman, "Appraising a Century of Scholarship in the American Journal of International Law," American Journal of International Law l00, no. 1 (January 2006), pp. 20-64.
(26) For a discussion of how a political process can produce intentional actions, see Frances Harbour, "Collective Moral Agency and the Political Process," in Toni Erskine, ed., Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Houndsmill, UK: Palgrave Macmillan, 2003), pp. 69-83.
(27) See Jan Klabbers, "Just Revenge? The Deterrence Argument in International Criminal Law," Finnish Yearbook of International Law 12 (2001), pp. 249-67.
(28) See Fitzmaurice and Sarooshi, eds., Issues of State Responsibility.
(29) Crawford, "Introduction," in The International Law Commission's Articles on State Responsibility, p. 20.
(30) A. John Simmons, "Introduction," in A. John Simmons, ed., Punishment: A Philosophy and Public Affairs Reader (Princeton: Princeton University Press, 1995), p. vii.
(31) Rehabilitation has also been offered as a justification for punishment, but only as a secondary matter; the goal of inflicting harm is either to deter violations or enact retribution.
(32) James Rachels, "Punishment and Desert," in Hugh LaFollette, ed., Ethics in Practice: An Anthology, 2nd ed. (Oxford: Blackwell Publishers, 2002), p. 468.
(33) For a more extensive discussion of the relationship of justice to punishment, see Matt Matravers, Justice and Punishment: The Rationale of Coercion (Oxford: Oxford University Press, 2000).
(34) Jeffrie Murphy has made this point in various places; see, for example, "Marxism and Retribution," in Simmons, ed., Punishment, pp. 3-29.
(35) See Man Goldman, "The Paradox of Punishment," in Simmons, ed., Punishment, pp. 30-46, for one attempt to address the problem of excessive punishment.
(36) See Simmons, "Introduction," in Simmons, ed., Punishment, p. viii.
(37) John Rawls, "Two Concepts of Rules," in H. B. Acton, ed., The Philosophy of Punishment: A Collection of Papers (New York: Macmillian, 1969 ), p. 108. 38 See Anthony F. Lang, Jr., Punishment, Justice and International Relations (London: Routledge, forthcoming, 2008).
(39) John Locke and Hugo Grotius explore how punishment need not arise from an authority, but might be undertaken by individuals in a state of nature.
(40) See the website of the ICJ, where its basic structure is described in more depth: www.icj-cij.org/icjwww/ icjhome.htm.
(41) There is a debate about whether the court simply makes declaratory judgments or actually imposes sanctions. Some believe the court is moving closer to imposing sanctions; see Malcolm Shaw, "The International Court, Responsibility and Remedies," in Fitzmaurice and Sarooshi, eds., Issues of State Responsibility, pp. 19-34.
(42) David Malone has recently argued that the Security Council shifted from a politico-military role to a legal-regulative role, particularly in its decisions concerning Iraq during the 1990s, which resulted in the creation of a wide range of bodies that were designed to regulate Iraqi behavior; David M. Malone, The International Struggle over Iraq: Politics in the UN Security Council, 1980-2005 (Oxford: Oxford University Press, 2006).
(43) For an insightful discussion of constitutional legitimacy, see Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005).
(44) See Bassiouni, Introduction to International Criminal Law, p. 136; and William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2003), pp. 26-29.
(45) Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1946), p. 19.
(46) Ibid., p. 106.
(47) Hans Kelsen, Peace through Law (Chapel Hill, N.C.: University of North Carolina Press, 1944).
(48) See the appendix to Peace through Law, pp. 127-40, which lays out a proposed treaty for the creation of a new international institution, the central aspect of which is the judiciary.
(49) For one of the leading theorists, see Thomas Schelling, The Strategy of Conflict (Oxford: Oxford University Press, 1963); and Thomas Schelling, Arms and Influence (New Haven: Yale University Press, 1966).
(50) Daniel Byman and Matthew Waxman, The Dynamics of Coercion: American Foreign Policy and the Limits of Military Might (Cambridge: Cambridge University Press, 2002), p. 48.
(51) I am indebted to Christian Barry for suggesting this further level of responsibility.
(52) For some of the complications of using this strategy in the current international system, see Anthony F. Lang, Jr., "Punitive Justifications or Just Punishment? An Ethical Reading of Coercive Diplomacy," Cambridge Review of International Affairs 19, no. 3 (2006), pp. 389-403.
(53) For the classic study of how a bureaucracy is necessary to commit genocide, see Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. and enl. ed. (New York: Penguin Books, 1964).
(54) Schabas, Introduction to the International Criminal Court, p. 32.
(55) Jens Meierhenrich, "The Ethics of Lustration," Ethics & International Affairs 20, no. 1 (2006), pp. 99-120.
Anthony F. Lang, Jr., This paper originated at a workshop organized by Toni Erskine and it is to her that I owe the biggest debt in helping me to conceptualize the overall idea. Others who have helped in thinking through these issues include Nicholas Rengger, Kateri Carmola, Davood Moradian, Chris Brown, Cornelia Navari, Larry May, John Tessitore, Patrick Hayden, and Howard Adelman. Christian Barry made extremely helpful suggestions at various stages of revisions, as did the two anonymous reviewers for EIA.
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|Author:||Lang, Anthony F., Jr.|
|Publication:||Ethics & International Affairs|
|Date:||Jun 22, 2007|
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