Communities of Interpretation in International Criminal Law?

In 2003, near the beginning of the Iraq war, I posed the question in the New York Times Magazine – ‘Who owns the rules of war?’  At that time, I suggested, the rules of war, including their formation, restatements, enunciation, interpretation, etc., had been gradually been passing out of the hands of state actors, those which actually engaged in it, and into the hands of NGOs.  That essay argued that “ownership” of the rules needed to pass back much more into the hands of states, and indeed states that actually undertook war.  The law needed to be framed much more as state practice and much less as idealized by NGOs.  

Whether that view was right or wrong – and many readers thought it nakedly wrong – the question of who has ‘ownership’ is an important one.  And since that time, “ownership” of the rules of war, it appears to me, has fragmented still further.  International criminal law is only part of the phenomenon, but it has a role. 

This is not meant here as a judgment of good or bad.  New and different communities of interpretation and authority, as we might call them, have been emerging in the arena of the rules of war.  Perhaps they are better or ultimately more authoritative or legitimate interpreters of the laws of war than those long-standing.  The traditionally authoritative actors included states and the International Committee of the Red Cross and the so-called ‘invisible college’ of international law.  The new ones include NGOs; the Security Council; other organs of the United Nations such as the Human Rights Council and its dependencies such as certain special rapporteurs; the activist-scholars who make up what we might call the ‘visible college’ of international law; public intellectuals of several fields, through books, journals, and the media; national or regional courts, not specialized as such in law of armed conflict but called upon to interpret it; and international criminal tribunals of all types, their staffs, and the staffs particularly of their prosecutors’ offices.

Fragmentation has particular implications for international criminal law, insofar as it is conceived as being more than simply limited to, by definition, the processes, actors, and jurisprudence of the international criminal tribunals.  One is that these communities of interpretation are susceptible of moving gradually off in their own directions, asserting the primacy of their own views and gradually tending to ignore other communities of interpretation.  Again, any one of them might be perfectly correct as a matter of substantive law, and some of the others substantively wrong.  However, fragmentation does press its own hermetic dynamics (even if one is not, as I am not, a relativist as to the underlying epistemology of interpretation or agnostic as among these communities of interpretation and their claims).  

Which is to say, as communities of interpretation, and the realms within which they are able to claim autonomy and authority, gradually move apart, it might turn out that they talk to each other less and less.  Yet each, or at least several, claim “universal” interpretive authority – inconsistent however with at least some others.  It is a bit the way in which universalist religious traditions claim universality even though, to anyone outside the fold, their claims are irreconcilable with some other religion making equally universal claims.  

Does this matter?  Should anyone care, were the communities of discourse and interpretation to move further apart rather than closing gaps? Not, I suppose, if one only plans to talk with one’s co-religionists. (Or if one believes that, given time, everyone else will be converted.  Or colonized or invaded and forcibly converted to the one true path.)  The issues on which communities of interpretation and authority might move apart are not necessarily the ones of direct treaty statement or substantive rules, but instead precisely the ones we might expect would be the most subject to, well, interpretation.  The list of substantive crimes in the Rome statute not at issue as such, for example – but instead the body of underlying principles that are, by their nature, much more plastic even though they have a crucial substantive functions.  Proportionality, for example.  (Speaking of which, by the way, the current vol. 102 of AJIL has a very interesting, excellent article by Tom Franck on proportionality and countermeasures.) The nature and formation of customary law, for another.  

But what happens to this emerging body of international criminal law if it turns out that the answer to the question ‘who owns the rules of war?’ is – no one? 

(I talk a bit more about this and further consequences, intended and intended, noticed and unnoticed, of the ‘rise and rise’ of international criminal law in a short, loose, discursive essay coming out one of these days in the European Journal of International Law.  Working title … Is It a Bug or Is It a Feature?  The sophisticated discussion of treaty interpretation in the symposium on Richard Gardiner’s book, and the extent – it seemed to me, anyway – that it relied on a shared community of interpretation, or canons of interpretation, made me go back to my EJIL draft essay.)