Contemporary International Criminal Law After Critique Symposium: After Critique – Rescuing the Anti-Impunity Norm Before Moving Forward

[Rocío Lorca is Associate Professor and Director of Research at the University of Chile Law School]

The papers in the recent ‘After Critique’ symposium move between critique and possibility regarding the role of international criminal law as an instrument of justice. Natalie Hodgson, for example, gives us good reasons to value international criminal law. Not as a grandiose mechanism that will deliver on the promise of holding power to account but as a tool that could help in this endeavor by creating awareness of the crimes of the powerful and perhaps piercing an ideology of moral superiority that has helped secure a context of de facto impunity. Sophie Rigney’s work, however, reminds us of the risks of relying on criminal law and invites us to consider the critical potential of criminal law institutions, such as a defense of duress, that allow for social and political context in the question of individual responsibility.

The symposium also invites us to look beyond the criminal law in the ways suggested by the contemporary abolitionist movement, developed primarily by African American feminists. Michelle Burgis-Kasthala and Barrie Sander ask where to go or what to propose, given that critique seems to have become today’s consensus or intellectual status quo around international criminal law (ICL). To avoid the risks of stagnation, they agree with Rigney that ICL needs to be infused with more radical ideas, such as those recently (and not so recently) advanced by anti-carceral feminists and anti-colonial voices. 

This last concern seems essential. Where do we go from here? The abolitionist worldview is appealing: we move into a space where justice is no longer a stigmatizing and backward-looking practice of blame through the imposition of individual harm. In the possibilities imagined by abolitionist movements, justice appears as a myriad of forms to address conflict and harm in ways that not only uphold our normative order and address the harms and needs of victims, but also, and perhaps most importantly, address the structural conditions that made the harm possible in the first place. These are the promises of both restorative and transformative justice, which are increasingly being used around the world with encouraging results. There is reason to believe that these forms of justice may also offer a good way to address atrocities. However, the abolitionist stance carries some risks. Perhaps the most important is that it places us in an all-or-nothing scenario and does not offer a clear path for working with current practices toward new forms of justice. But it also risks leaving behind, or even undervaluing, practices and commitments that we have reason to value.

Today, international institutions are challenged not only by critical voices, but also by powerful countries from the Global North that systematically disregard basic normative consensus, such as that embodied in the Genocide Convention. In this context, we are reminded of E. P. Thompson’s warning not to “belittle” the fact that while law conceals and produces many injustices and inequalities, it is not the same as arbitrary power. To serve power, law must take a form that offers protection to the powerless. Not much protection, but some. Today, more than ever, we need to hold onto those spaces where law and criminal law can contain power. From this perspective, part of what I believe both feminist and human rights advocates need to persevere on is a strong commitment against impunity. But to do so in a way that does not betray the heart of their agendas, we need to rethink what impunity is, why we care about it, and how we can address it.

The fight against impunity is a central driving force for feminists and human rights defenders and it is quite clear that today’s mainstream understanding of the fight against impunity sees it only as a quest for criminal justice. What Barrie Sander has called the “anti-impunity mindset”, is responsible for an increasingly narrow understanding of justice as prosecution and punishment, with all the costs and harms that entails. As I have argued elsewhere, this alliance between criminal justice and the anti-impunity norm has largely been developed by progressive groups, such as feminists and human rights advocates, who have increasingly used punitive approaches to address their challenges. But, as many others have also argued, if the development of this strong alliance was inevitable in order to convey a sense of seriousness and raise awareness about abuses and impunity, it no longer seems justified.

To break the link between feminism and carceral politics, as well as the link between human rights and punishment, many have argued that we need to stop putting the fight against impunity at the center of the agenda. I disagree. Creating space for alternatives to punishment is much more feasible when we realize that what seems to be the main reason for an alliance with the carceral state, i.e., the anti-impunity norm, need not promote punitive policies. Moreover, the anti-impunity norm is so crucial to the legitimacy of our political practices that the success of an abolitionist project depends in part on demonstrating that the abandonment of punishment does not entail the abandonment of a commitment against impunity. If we cannot pursue abolition without abandoning the commitment against impunity, we may need to retain punishment. But, as I will now suggest, the amount of criminal law needed to address impunity should be quite minimal.

A commitment against impunity has supported the punitive turn in the human rights and women’s rights movements only because a very narrow understanding of impunity has become increasingly dominant. As I have argued elsewhere, in this narrow or thin understanding, impunity is primarily a failure to punish. It can only be addressed by expanding the scope and severity of criminal law. Within such a conception, an anti-impunity agenda leads to an inevitable alliance with penal populism and the carceral state.

There is, however, a much broader and more relevant conception of impunity in which the means of addressing it go far beyond the criminal law. In this broader or thicker conception, impunity is primarily about a failure of equality before the law that undermines the rule of law, where a crime is not prosecuted or punished because the offender is placed beyond the reach of the law (or the victim is considered unworthy of legal concern). Viewing impunity in this broader sense, as a political rather than a criminal justice issue, does not mean that punishment has no role to play in enforcing an anti-impunity norm. However, it should temper the focus on punishment and highlight the importance of non-punitive interventions in creating accountability as a central condition for the rule of law.

Taking equality before the law, rather than retribution or deterrence, as the central goal of the fight against impunity opens up a wider range of options. Sometimes accountability (as a condition of equality) is better served by refraining from punishment, or at least by not completely closing off the possibility of amnesty or pardon. This is because sometimes criminal justice undermines access to truth, reparation or redress for victims. Moreover, if the fight against impunity is about ensuring that the law reaches everyone equally, when this requires a punitive intervention, it should be a moderate one, lest we risk pulling “law out of office“.

Finally, placing equality at the center of the fight against impunity helps us to see that, from the point of view of promoting accountability, punishment is not always better than no punishment – it depends on who is punished and who is not. This has been seen in the realm of international crimes, where a fixation with punishment has sometimes led international criminal tribunals to work in synergy with abusive political regimes, ensuring the impunity of the many in order to achieve the punishment of the few. Feminism should remain attentive to this issue. A focus on punishment as a means of addressing impunity can sometimes mean condoning or tolerating the impunity of the violence that takes place in and around penal institutions, as well as the impunity of collective agents. In other words, as many in this symposium have pointed out, by using a tool designed to establish individual culpability, we leave societies unaccountable for their responsibility in maintaining the structure that produces and reproduces violence and abuse.

Some critics may agree with the broader conception of impunity that I offer, and yet think that since the idea has already been compromised by a punitive ethos, it would be wiser to concede the term and give the norm against impunity a more secondary role. But I disagree; I think the struggle over the concept is crucial.

Impunity, in its broadest sense, points to a specific problem that is not easily conveyed by any other term. Its broader meaning is not foreign to the history and common use of the term. The very word impunity emerged from a context of abuse of power and structural discrimination in Latin America. Indeed, it is because impunity has historically been associated with abuses of power or structures of political inequality that the term has a strong rhetorical force. This force is important because it mobilizes institutional change and provides legitimacy. Why should we allow a narrow or punitive definition of impunity, which obscures an important part of why we are concerned about it, to carry all this rhetorical force? This is particularly problematic when that force is used to limit our ability to achieve a “culture of accountability” and to realize victims’ rights. If I am right that the concept of impunity has drifted toward a narrow view of accountability as prosecution and punishment, a better way forward is to help shift the concept of impunity back from criminal justice to political justice, and to allow for forms of justice other than punishment to count as sufficient when they create accountability, and thus block the need for further criminal prosecution.