Rethinking International Law and Justice

Charles Sampford, Spencer Zifcak

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317064114
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

General principles of law have made, and are likely further to make, a significant contribution to our understanding of the constituent elements of global justice. Dealing extensively with global headline issues of peace, security and justice, this book explores justice arising in specific areas of international law, as well as underlying theories of justice from political science and international relations. With contributions from leading academics and practitioners, the book adopts an interdisciplinary approach. Covering issues such as international humanitarian law, and examining the significance of non-state actors for the development of international law, the collection concludes with the complex question of how best to rethink aspects of international justice. The lessons derived from this research will have wide implications for both developed and emerging nation-states in rethinking sensitive issues of international law and justice. As such, this book will be of interest to academics and practitioners interested in international law, environmental law, human rights, ethics, international relations and political theory.

Chapter 1
Rethinking International Law and Justice

Spencer Zifcak

Overview

The past two decades have witnessed a substantial revision in thinking about the nature and scope of international law. The shift is encapsulated in an alteration in thought as to who should be the primary subject of the law. There is now a progressive appreciation in political and legal spheres that the primary concern of international law should be not only with the relations between sovereign states but also and equally with the protection of the individual dignity of the human person.¹ This shift is most evident in the recent prominence given to the idea of human security, its character and advancement. Beneath this change in perspective there lies an awakening moral commitment to the international rule of law and to the incremental achievement of some legitimate form of global justice.²

Serious attention to these matters was galvanized in two reports commissioned by the then Secretary-General of the United Nations (UN), Kofi Annan, in 2004. The first report was that of the High-Level Panel on Threats, Challenges and Change.³ The Panel was asked to address four key issues. First, it dealt with contemporary challenges to international peace and security. Next, it considered possible reforms to the existing international system of collective security in the interests of dealing more effectively with international and intranational conflict and violence. Then it turned its attention to the existing functioning of the major organs of the UN. Finally it proposed an extensive programme of reform in their operation.

The Panel began by identifying new and existing threats to international security. In doing so, it engaged in a significant conceptual shift. It did not confine itself to threats of war, civil disorder, terrorism and nuclear weaponry. It cast its net more widely to draw in less evident but no less important causal factors. These included poverty, infectious disease, organized crime, the abuse of human rights, and environmental degradation. In the Panel’s view, security, development and human rights were inextricably linked. Each contributed to and was affected by the other. One could no longer therefore consider the problem of international peace and security in isolation. Their protection was critically dependent upon the achievement of economic and social security and international respect for human rights.⁴

Perhaps the most important thread that ran through the Panel’s analysis was that, in certain circumstances, the protection of human security might override the prerogatives of state sovereignty. By switching its conceptual frame from one that privileged states’ entitlements to another that was concerned with states’ responsibilities to underpin and maintain their people’s individual and collective security, the Panel sought to situate human security at the centre of global political, legal and social concerns. As its report put the matter,

What we seek to protect reflects what we value. The Charter of the United Nations seeks to protect all states, not because they are intrinsically good but because they are necessary to achieve the dignity, justice, worth and safety of their citizens. These are the values that should be at the heart of any collective security system for the 21^st century, but too often states have failed to protect and promote them. The collective security we seek to build today asserts a shared responsibility on the part of all states and international institutions, and those who lead them, to do just that.⁵

A second report, from the Millennium Project, sought to undergird and supplement the new approach.⁶ It proposed a concrete plan of action through which the Millennium Development Goals for the reduction of poverty could be achieved.⁷ Under this plan, developing countries would take primary responsibility for strengthening their economic and social performance. For their part, developed countries should increase their development assistance so that the Goals could be attained by 2015. Together the two reports provided the foundations upon which new thinking about the role of law and politics in international affairs might be constructed.⁸

International law has been at the centre of subsequent developments that have promoted this expanded conception of security. Moving to the position that its original concern with state sovereignty should now be balanced by a parallel commitment to the advancement of human security, international law has undergone rapid change substantively and procedurally. Perhaps the two most prominent threads of that change have been, first, a progressive extension of states’ legal responsibility to prevent the commission of genocide and crimes against humanity and to protect civilian populations from the ravages of violent conflict. Secondly, there has been a remarkable expansion in international legal mechanisms designed to ascribe individual responsibility for the commission of such crimes and to try to punish them. A desire to limit states’ internal sovereignty in the interests of the protection of people’s fundamental human rights has been a powerful and unifying force in both of those trends.

A third thread has emerged even more recently. That is, a growing recognition within international law, in particular in international human rights law, of the significant role played by non-state actors in the commission of human rights violations and, consequently, the need for states and international institutions to regulate them. Each of these threads deserves further elaboration. The purpose of this volume is to cast a new and critical eye over prominent aspects of these significant legal innovations.

Each of the threads identified has been driven by its context. The most significant driver has been the change in the nature and extent of global violence.⁹ War between states has faded at the same time as wars and violence within them has increased dramatically. States remain significant initiators of violence within borders, but they have been joined there by non-state actors, in particular rebel movements and terrorist organizations. The changing character and intensity of violence, engendered by alterations in its forums and actors, has focused global attention as never before upon the fate of individual civilians in its wake. Violence against citizens has increased exponentially. Out of this, the revivified concern with human security has arisen.

One result has been an expansion in and increasing confluence between international humanitarian law, human rights law and criminal law.¹⁰ Common Article 3 of the Geneva Conventions, which provides for the humane treatment of non-combatants, has attained new prominence and two Additional Protocols have been added to the Conventions. The protection of civilians has become a core principle of international humanitarian law. Article 51(2) of Additional Protocol 1, for example, prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population.¹¹ This prohibition has also matured into a principle of customary international law. Consequently, it binds all countries, even those who have not ratified the conventions and protocols. Protocol 1 adds that fundamental human rights apply fully in situations of armed conflict. Common Article 3 of the Geneva Conventions extends its protections of civilians to any armed conflict, thus embracing not only interstate conflict but also ethnic and religious civil wars and transnational terror.

The reach of international humanitarian law has again been significantly expanded in the Statutes of the International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR).¹² The Tribunals were given the power to prosecute individuals for breaches of the Geneva Conventions, the violations of the laws or customs of war, genocide, and crimes against humanity. The way was opened for persons to be prosecuted for the crimes defined when committed in armed conflict, whether the conflict was international or internal in character, and directed against civilians. The definition of crimes against humanity has been widened from crimes such as murder, extermination, torture and rape to include persecution on political, racial and religious grounds and other similarly inhumane actions.

Subsequent judicial decisions made by the ICTY have further demonstrated the progressive interpenetration of international humanitarian and human rights law. Each of these fields retains its exclusive jurisdictional domains, but in particular in relation to issues relevant to international crimes and criminal proceedings, the lines of demarcation have become more hazy. The ICTY has determined, for example, that crimes against humanity do not require a connection to international armed conflict. It is the occurrence of a widespread and systematic attack on a civilian population that makes the relevant act a crime against humanity as opposed to a war crime.¹³ Similarly, the Geneva Conventions have increasingly been interpreted with reference to their implications for the protection of the human person.

In that context, the second remarkable development in international law has been the introduction of new judicial mechanisms and procedures designed to confer individual responsibility for the commission of grave crimes against humanity.¹⁴ Following from the ad hoc criminal tribunals for Yugoslavia and Rwanda, the International Criminal Court was created.¹⁵ Hybrid tribunals such as the Special Court for Sierra Leone and similar bodies in Lebanon and Cambodia have come into being. Truth and Reconciliation Commissions in countries as diverse as South Africa and East Timor have also been initiated as a crucial component in the pursuit of transitional justice.¹⁶ These new judicial and quasi-judicial bodies have stepped into the gaps left initially by the laws of war and their limited application to novel arenas and situations of institutional violence, civil war and terrorist attack. Human rights law and international criminal law have combined to provide new and creative means for the prosecution of offences against humanity in the interests of protecting people and peoples who are vulnerable to grave harm.

Within that framework, a crucially important development has been the expansion of the idea and actuality of universal jurisdiction:¹⁷

Today, international law will sometimes … reflect not only substantive agreement as to certain universally condemned behaviour but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behaviour. That subset includes torture, genocide, crimes against humanity and war crimes. The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity.¹⁸

It is, of course, essential that the exercise of universal jurisdiction is confined to only those crimes the international community regards as most grave. But once that prerequisite is met, obstacles to its application such as extraterritoriality necessarily fall away. Consequently it has now been recognized that states may prosecute individuals for the commission of crimes against humanity even though the state in question has no territorial links with the offence or ties of nationality to the alleged offender. The offences are subject to international jurisdiction as a matter of customary international law. Similarly, the obligations upon states derived from customary international law are generally considered as sufficiently powerful as to override any objections to their exercise on the grounds of state immunity. Crimes against humanity now attract universal jurisdiction if two preconditions are met. First, they must be contrary to a peremptory norm of international law. Secondly, they must be so serious, so systematic and so widespread that they can justly be regarded as an attack on the international legal order.¹⁹

The application of universal jurisdiction is not without its difficulties. An accused person must still be in the territory of the prosecuting authority. Many escape justice by not leaving their own. In many states, governments may still reserve their authority to determine whether alleged crimes will be investigated, prosecuted or tried. Particularly where the accused are senior political or military figures, there will be a natural reluctance in governmental circles to pursue individuals who may still possess substantial political power or influence. An associated difficulty relates to the achievement of an appropriate balance between keeping the peace and prosecuting crime. Potentially successful endeavours to end civil war by political means may be thwarted by the assertive exercise of universal jurisdiction, whether by a home or foreign state, to prosecute those engaged in sensitive negotiations for their perceived criminal activity during the course of the conflict. Nevertheless, particularly under the aegis of international tribunals, universal jurisdiction to try individuals responsible for crimes against humanity has become an established part of the framework of international law.

A third but still fledgling thread in international law’s development as a key means of promoting human security has been its recent acknowledgement of novel problems posed by non-state actors. Actors such as armed opposition groups, non-governmental organizations, multilateral governmental bodies and transnational corporations have become prominent players both in the abuse and protection of human rights. The changing nature of violence and conflict has contributed to the emergence of new kinds of insurgency activity, rebel movements and terrorist organizations. Transnational corporations have inflicted or connived in the abuse of human rights. Their activities have consequently become an increasing focus of international concern.²⁰ An explosion in international treaty making has created powerful private and intergovernmental regulatory organizations. Their lack of accountability and failure to incorporate human rights standards into their deliberations presents new challenges for legitimate global governance.²¹ More positively, in response to worldwide human rights abuses, international civil society organizations dedicated to their prevention and remedy have also assumed an increasingly important political and legal role. This in turn has seen governments, among others, focus greater attention on their accountability.²²

International law has yet to cope adequately with abuses of power in which non-state actors engage. The challenge faced by international law is to address the international community’s concern to prevent human rights violations committed by non-state actors before their seeming immunity from the law’s reach begins to make the existing human rights regime, directed to states, seem secondary. The central strategy here must be to persuade and induce states themselves to set in place the laws required to regulate the conduct of non-state actors in the human rights sphere.

This is a task upon which international organizations, in particular the UN, have already embarked. The UN has begun to draft agreements, pursue policies and encourage practices that may in time alleviate the disturbances that the absence of non-state actors from the conventional domain of international law still generates. For example, under the guidance of the UN’s Special Representative of the Secretary-General on the issue of human rights and transnational corporations, the world body has formulated the Guiding Pr...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Abbreviations
• List of Contributors
• Acknowledgements
• 1 Rethinking International Law and Justice
• PART I: INTERNATIONAL HUMANITARIAN LAW
• PART II: NON-STATE ACTORS IN PROMOTING JUSTICE
• PART III: RETHINKING ASPECTS OF INTERNATIONAL JUSTICE
• Index