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AJIL Vol 107 No. 2

AJIL Symposium: Sovereignty and Humanity

by José E. Alvarez

[José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and is the Co-Editor-in-Chief (along with Benedict Kingsbury) of the American Journal of International Law]

As the new co-editor in chief of the AJIL, I, along with my co-EIC, Benedict Kingsbury, are very grateful to Chris Borgen and Opinio Juris for hosting this on-line symposium on the Journal’s April 2013 issue.  We also thank the two authors, Eyal Benvenisti and Leila Sadat, for exposing themselves to this trial by fire.  It takes courage for scholars to expose themselves to instant and exceedingly public reactions by both the illustrious commentators solicited by Opinio Juris and readers encouraged to add instant posted comments.

The Benvenisti and Sadat pieces address core concerns of our discipline and the Journal is proud to have published these thoughtful contributions.  While strikingly different in approach and subject-matter, these articles raise provocative questions about what contemporary sovereignty means and how international law manages to serve the needs of states and the humans that live in them.  Both Benvenisti and Sadat are engaged in re-imaging the global rule of law as a tool to defend humanity rather than states as understood at the time of Hobbes or Bodin.  Benvenisti re-defines the hoary principle of self-determination, re-conceives of states’ responsibility to protect as a limiting not enabling concept, and transforms the reason-giving requirements found in administrative law into erga omnes obligations that states owe to each other.  Sadat uses her empirical findings on the work of international criminal courts to emphasize the need to go beyond the Nuremberg precedent to defend humanity from internecine atrocities that are often not dependent on organizational policies controlled by the state.  Both are working within recognizable legal positivist paradigms but both are also driven by normative aspirations to achieve progress through law, or as the centennial annual meeting of the ASIL put it, “a just world under law.”

This on-line symposium is the first (but hopefully not the last) for AJIL.  I hope that it is only one step in making the Journal more accessible and useful.  A quarterly and peer-reviewed publication like the Journal works under numerous constraints.  As our readers know, since nearly half of the Journal consists of sections devoted to coverage of international decisions, the contemporary practice of the U.S., and book reviews, we generally publish, at best, only two lead articles per issue.  Competing for those eight slots per year are the 600-800 submissions that we receive annually.  (At this mid-year mark, we are now reaching 300 submissions.)  Publishing the Journal also takes time.  Our double-blind peer review process for reviewing manuscripts requires considerable patience from those who submit articles to us and, in the usual case, considerable hard editing work even for those authors who secure an acceptance of publication.  While the over 100 year old Journal now competes with innumerable law reviews here and abroad, the gap between opportunities for print publication (particularly in a peer-reviewed journal) and the ever-rising numbers of members of Oscar Schachter’s “invisible college” has never been wider.  Today’s “college” is not an intimate society of individuals trained in a single mind set.  It is an ever expanding multitude of persons trained in diverse schools of thought and legal and non-legal disciplines, geographically disparate and often specializing in sub-fields that can no longer be defined as covering only “foreign affairs.”  While Benedict and I are attempting to make the Journal ever more reflective of the increasingly diverse “invisible college” (or should we say “invisible colleges”?) from around the world –as through our recent effort to solicit public submissions for an Agora on the Supreme Court’s Kiobel decision—inevitably, prospective AJIL authors will continue to receive more polite rejections than acceptances from us.  Web-based symposia such as this one are a great way to expand the conversation beyond the authors who make it to our print edition—to make sure that more of us have a voice in figuring out what makes a “sovereign” and what it means to serve “humanity.”

AJIL Symposium: Benvenisti response to Klabbers, McCrudden, Von Bogdandy and Schmalz

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

I am grateful for the three incisive and insightful comments. Due to space limitations I will not be able to do justice to any of the comments in this response, but they will certainly help in my future work on this subject. I will use this brief response to clarify some parts of my argument and to situate the article in my broader research project.

To clarify my argument and hint at its potential significance I will use the pending case before the International Court of Justice concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The dispute focuses on Japan’s discretion to issue “special permits” for killing whales arguably for scientific research as provided by Article 8(1) of the International Convention for the Regulation of Whaling (1946). The said Article allows a member state to issue permits and impose conditions “as the Contracting Government thinks fit.” Japan interprets this obligation as a “good faith” obligation, arguing that neither the International Whaling Commission nor the ICJ “have power to approve or disapprove the issue of a special permit.” (Public seating, 4 July 2013, afternoon, verbatim record, p. 36 paras. 23-24). Australia argues, however, that Japan must demonstrate the scientific value of the permits because “Japan does not ‘own’ the whales it catches.” (Public seating, 10 July 2013, morning, verbatim record, p. 65 para. 23). As stated by Professor James Crawford, arguing for Australia: “In respect of resources in the international public domain, to recognize a wide margin of appreciation is, in effect, to allocate those resources to the exploiting State.” (id., para. 22). Given the global commons problem, continues Crawford, the Convention requires “a proper showing … that [research] proposals are genuinely motivated by scientific considerations and adapted appropriately to achieve scientific goals.” Moreover, Japan must “consider seriously” the views of the IWC and its subsidiary organs, otherwise the conclusion will be “that the project is not being carried out for the purposes of scientific research, but for some other purpose inconsistent with the Convention.” (id. at para. 26).

The trusteeship concept that I develop suggests that states are subject to rigorous accountability requirements not only with respect to their treatment of endangered migratory species, but also when they are using transboundary resources they share with a few other states, and even when they manage their “own” resources. For states do not fully “own” their “own” resources. Stated otherwise, following the German Basic Law concept of ownership (Article 14), “Ownership entails obligations. Its use shall also serve the public good.” As discussed in my article (at pp. 311-12), the same rationale applies with even greater force to states.

To some extent, such accountability obligations are minimal because they do not restrict the scope of sovereign discretion. If Australia is right, Japan would have to provide more data and expert analysis to prove the scientific basis for its decision to permit the killing of whales, and pay serious attention to the views of the IWC and others. But the ultimate decision would stay with Japan. Others may remain skeptical, and their suspicion may even have a stronger basis, but nothing more. This would be an “imperfect” obligation, in the sense that it would be a non-justiciable one; but an imperfect obligation is not necessarily an ineffective one, as anyone exposed to public shaming will appreciate.

The question whether the ICJ may question Japan’s explanation is a different and rather difficult one, which requires further deliberation. In my article I identified this as a question to be addressed at a later stage. Such an inquiry will have to assess the legitimate scope of review of national policymaking by external bodies such as international tribunals, in light of concerns with the impartiality of the judges, their competence to make better judgment calls than the reviewed sovereigns, and the potentially stifling impact of their interventions on domestic democratic processes. It may make sense, for example, for the reasons stated by Crawford, to authorize international tribunals to review national discretion when it applies to the use of migratory species but not to the management of domestic stocks.

This minimalist vision seems insufficient for von Bogdandy and Schmalz who want to “Push[] Benvenisti Further.” The opposite push comes from McCrudden who regards my position as “anything but ‘modest’ or ‘minimal’.” (more…)

AJIL Symposium: Comment on Eyal Benvenisti, Sovereigns as Trustees of Humanity

by Christopher McCrudden

[Christopher McCrudden FBA is Professor of Human Rights and Equality Law, Queen’s University, Belfast, William W Cook Global Professor of Law, University of Michigan Law School, and Leverhulme Major Research Fellow (2011-2014). I am particularly grateful to Kathleen McCrudden who provided helpful comments on an earlier draft.]

Eyal Benvenisti asks how far, if at all, national sovereign states are under an obligation to take into account the effects of their internal decisions on those outside the boundaries of the state. We can consider his argument either at a very high level of abstraction, or test his (and our) intuitions by using a worked example of a practical problem that raises the issue he discusses. I prefer the latter approach.

An example

Over the past couple of years, there has been an intense debate in the United Kingdom over whether the UK should leave the European Convention on Human Rights; as part of this larger debate, there has also been a narrower debate over whether (and if so how) the UK should implement the decisions of the European Court of Human Rights on prisoner voting (an issue on which I have blogged earlier elsewhere).  The way in which both the broader and narrower debates are conducted have potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court on prisoner voting, or high-ranking members of the Government arguing that the UK should leave the Convention, has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states.

It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It is another thing entirely where the British debate is transmitted to barely democratic European states with a debatable human rights record, and a weak commitment to constitutionalism. In the latter states, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimizing their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Is the UK under an obligation to take into account the adverse effects that the British debate, and any decisions flowing from it, may have elsewhere?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this post, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, the UK ought to take these into account. It is at this point that Eyal Benvenisti’s article is powerfully relevant, since it addresses directly the morality (as well as the legality) of ignoring what economists call ‘externalities’ in domestic decision-making.  On what might we base an obligation (whether moral or legal) to ‘internalise’ these externalities, for example in the debate over the UK’s continuing membership of the ECHR, or whether to implement the ECtHR’s decisions?

Benvenisti’s argument


AJIL Symposium: On Medium and Message

by Jan Klabbers

[Jan Klabbers is Professor of International Organisations Law and Director of the Centre of Excellence in Global Governance Research at the University of Helsinki.]

Much of the more serious theoretical reflection in international law aims to bring apology and utopia in alignment. This may be structurally impossible, as Martti Koskenniemi suggested a quarter of a century ago, but aiming to bridge the gap between the two is nonetheless a laudable enterprise. Eyal Benvenisti’s recent contribution to the American Journal of International Law comes closer than many before him. Partly this is because, unlike many others, Benvenisti takes both apology and utopia seriously: he is realist and idealist rolled into one. For him, sovereignty is not a bad word but a respectable concept, providing the space for legitimate exercises of self-determination. At the same time, he is aware that with globalization, many sovereign states (as traditionally conceived) are no longer able fully to help and protect their citizens. Globalization erodes independence and thus undermines self-determination – hence, sovereignty needs to be reconceived in order to take non-citizens into account and, what is more, is indeed undergoing such a re-conceptualization in positive international law.

Benvenisti has written an excellent piece, in his customary lucid and thoughtful style. The paper contributes to global ethics in a fairly novel way by positing a combination of cosmopolitanism and parochialism that seems reasonable and workable; it therewith adds to other recent studies engaged in similar enterprises, albeit from different angles (think of Kok-Chor Tan’s Justice without Borders, or Toni Erskine’s Embedded Cosmopolitanism). It contributes to international law by demonstrating that international law as it currently stands can indeed be seen to offer support to such a novel re-conceptualization of sovereignty as trusteeship. I have only one major gripe with the article, and that is that it is too short. It is too short in two ways: it neither allows for the argument completely to unfold, nor does it allow for the empirical materials to be carefully discussed. These are both obviously restrictions stemming from the format of a journal article, so perhaps the thing to question is the popularity (well-nigh sanctity) of the format, or the link between medium and message: the medium dictates the message.

My first gripe relates to the space needed for normative argument. (more…)

AJIL Symposium: Pushing Benvenisti Further – International Sovereignty as a Relative Concept

by Armin von Bogdandy and Dana Schmalz

[Armin von Bogdandy is Director and Dana Schmalz is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law]

In another seminal piece, Eyal Benvenisti continues his well-balanced middle course between utopian cosmopolitan aspirations and resigned state pragmatism, this time by reconstructing contemporary sovereignty. Like many others, he considers the Westphalian model of state power to be neither an appropriate description of today’s world order nor a normatively appealing model for the future. Starting from an assessment of democratic deficits and dilemmas arising from limited space and resources, Benvenisti shows why a different conception of sovereignty is morally required. He then accomplishes a brilliant reconstruction of important court decisions and doctrinal evolutions that support his normative findings. Within this reconstruction, Benvenisti integrates a great variety of legal phenomena, ranging from a vessel’s right to innocent passage, to consultation duties in WTO-law, to the responsibility to protect.

These normative and legal reconstructions are impeccable, and we are sympathetic to the general thrust of Benvenisti’s argument. However, we suggest a more pluralist approach, mainly in two respects. For one, we would complement Benvenisti’s private law paradigm with a stronger focus on international public authority, which plays little role in his reconstruction. Depending on the subject matter and the institutions available, some issues might be resolved more effectively and inclusively through international institutions. At the same time and on a more basic level, we suggest construing the international sovereignty of a country in a more pluralist manner, taking into account its relevant constitutional law. We think that Benvenisti’s legal reconstruction can be thickened, in this way, while avoiding his problematic reliance on humanity as a source of public authority.

International sovereignty has changed from a founding concept to a functional concept: once, international sovereignty provided a point of closure where legal thinking could stop. Georg Jellinek perfectly captured this paradigm in 1882 when he stated that everything could be explained “through sovereignty and from sovereignty”. Today, as Benvenisti’s analysis shows, it is far better to conceive of international sovereignty functionally, so as to serve other principles, such as self-determination, human rights, or reasonable allocation of resources. Pushing Benvenisti’s reconstruction further, we propose that the functional concept should also be conceived as relative: The specific meaning of a state’s international sovereignty should be informed by its constitutional law and practice.

Benvenisti’s article perhaps presents the world in an overly uniform manner. To start with his fabulous image of the “small apartment in the densely packed high-rise”: Great as the picture is, it neglects huge differences between states. Sticking with the metaphor, we might say that some owners possess special voting rights in the owners’ association, have special access to the common property, and own a mansion out of town, to which they can escape when fed up with the neighbors. Others, by contrast, do not have such privileges, and still others have pooled their rights for common exercise. On a more legal note, the constitutional orders of China, Germany, or Lebanon enshrine deeply different understandings of the international order and the country’s place therein. A reconstructive proposal should take those differences into account. Accordingly,  international sovereignty could be informed by the respective constitutional openness towards common projects and willingness to recognize shared responsibility.

Yet, how can such relativization take place without endangering the autonomy of international law and the equality of states under international law? (more…)

AJIL Symposium: Sovereigns as Trustees of Humanity

by Eyal Benvenisti

[Eyal Benvenisti is the Anny and Paul Yanowicz Professor of Human Rights at Tel Aviv University Faculty of Law and Global Visiting Professor at New York University School of Law.]

We live in a shrinking world where interdependence between countries and communities is intensifying. This interdependence tests the limits of the traditional concept of sovereignty which crystallized at a time when distances between nations were large and cross-border externalities were rare; a time when peoples sought self-determination and self-sufficiency, justified by the perception of a perfect fit between the authors of the law and those subject to its rule. Nowadays sovereigns manage resources that are linked in many ways to resources that belong to others. They shape through daily regulatory decisions the life opportunities of foreigners in faraway countries, while the latter cannot participate meaningfully in those decisions either directly or through their governments. This reality questions the solipsistic vision of state sovereignty as the ultimate source of authority, a vision that yields outcomes that are inefficient, inequitable and undemocratic.

The misfit between the increasingly outdated and inadequate concept of sovereignty and pressing contemporary demands has led several scholars to explore more “globalist” visions, norms and institutions in lieu of state sovereignty. But one must not be too quick to endorse the demise of sovereignty and the transfer of state authority to global institutions. Sovereigns continue to be key venues for policy-making and for reviewing decisions made by global bodies. Precisely because sovereigns remain crucial global actors, their global role should be reflected in law: they must take on a “trusteeship” role that entails obligations towards all those potentially affected (negatively or positively) by their policies.

The first aim of my article is to provide a normative foundation for the claim that sovereigns should be regarded also as trustees of humanity rather than the trustees only of their own people. I present three distinct normative approaches for grounding the obligation of sovereigns to weigh other-regarding considerations: the right to self-determination whose exercise exclusively within national communities can actually undermine peoples’ ability to have their lives in their own hands; the obligation of national governments to recognize the equal moral worth of all individuals, and hence to justify why they treat non-nationals differently; and the obligation of the same governments to explain to others their exclusive use of portions of the earth, which inherently belongs to all. Each of these three interrelated grounds leads to the conclusion that sovereignty must be regarded as embedded in an encompassing global order that delineates not only states’ powers but also their obligations. These obligations essentially require sovereigns to exercise their authority in ways that take account of the interests of all individuals potentially affected by them either negatively or positively. While sovereigns may have good reasons to give priority to the interests of their citizens, they must nonetheless keep in mind the interests of those beyond their borders and, to some non-negligible degree, be accountable to them.

The article then identifies the minimal normative and procedural other-regarding obligations that arise from the trusteeship concept. My choice here is to focus on the minimal obligations is based on the pragmatic concern with the imposition of global burdens on states without safeguards that ensure appropriate space for preferential treatment of one’s own citizens and adequate mechanisms for burden-sharing among states. Obviously, the trustee sovereignty concept suggests that sovereigns have an obligation to mutually explore and develop the current system of sovereign states. But this exploration requires a separate discussion which is beyond the scope of the article.

The idea is therefore to explore the minimal obligations that apply to all branches of the sovereign state (legislatures, executives, and courts), regardless of whether other sovereigns reciprocate (although reciprocity or the lack thereof could be a relevant consideration when making the decision). These minimal obligations include the obligation to take the interests of foreigners into account when formulating and implementing policies; to provide voice in their decision-making processes to all those affected by their policies; and to accommodate foreign interests if doing so is costless to the state (or even to incur costs in cases of catastrophes). The article further suggests that these minimal obligations are already embedded in several doctrines of international law that delimit the rights of sovereigns, such as the general doctrine on abuse of rights or specific rights of passage through straits or through another state’s land.

This emphasis on minimal obligations that are primarily procedural is informed by the administrative law-based tradition, which takes decision-making processes seriously. This tradition puts faith in the power of voice of affected stakeholders and in the discipline of accountability of decision-makers. The assessment is that public participation and accountability are not only valuable intrinsically, but they also contribute to better informed, more efficient and also more egalitarian outcomes.

The invocation of “humanity” by sovereigns has too often served as mask to colonial and other types of illegitimate foreign intervention. The trusteeship concept as developed here is not susceptible to similar concerns. It is invoked not to justify intervention by one or several states in another state’s affairs (as, for example, the concept of responsibility to protect envisions), but just the opposite – it invites the foreigner to have voice in the sovereign’s decision-making processes. The minimal trusteeship obligations sets-forth a limiting set of obligations rather than an enabling one. Indeed, the main promise of the trusteeship concept lies in its limiting impact on powerful countries that shape the opportunities of individuals everywhere: global leadership generates global accountability obligations.

The article was written as a framing paper for the GlobalTrust research project that I direct at Tel Aviv University Faculty of Law. Initially funded by the Israeli Science Foundation (2010-2013), the project is now funded by a European Research Council Advanced Grant (2013-2018). The project will explore the historical and moral background of the state trusteeship concept, assess the specific obligations that states owe to foreigners stakeholders in different areas of international and constitutional law (investments and trade law, environment law, human rights law, international humanitarian law, etc.), and evaluate the possible institutional mechanisms (such as international and national courts) that could legitimize the external monitoring and review of states’ compliance with such other-regarding obligations.

AJIL Symposium: Sadat response to Robinson and van Sliedregt

by Leila Nadya Sadat

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]

I found the comments of my colleagues very thoughtful and helpful to my own continuing engagement with the law in this area.  As Elies points out, sovereignty concerns are indeed central to the original conceptualization of crimes against humanity at Nuremberg, and remain a preoccupation of the Rome Statute that the ICC’s judges are charged with interpretation.  As she notes, this thread of the Kaul dissent is unobjectionable.  She then turns to the question of “human-ness” – the focus of the Rome Statute and indeed, all of modern international criminal law, on the protection of “humanity” as a second value embedded in Article 7 of the Rome Statute.  I agree with this, and with Darryl’s understanding of much of the chapeau element’s purpose being essentially jurisdictional in nature – a way of sorting out permissible and impermissible exercises of international jurisdiction that will keep cases that belong in national courts in those courts and cases that need to be adjudicated internationally at the ICC (or elsewhere).  Indeed, one of the most interesting developments in international criminal law has been the elaboration of a fairly clear framework for the elaboration of a set of jurisdictional principles – complementarity, gravity, the widespread or systematic nature of the harm, the victim or the harm caused some specific damage to an international interest (i.e., attacks on UN peacekeepers), the shocking nature of the harm, etc. – to sift cases properly before international criminal courts from those properly tried elsewhere.  These jurisdictional bases overlap, but they are, by and large, alternative, not cumulative or, in the Rome Statute system, are directed to admissibility rather than “jurisdiction” strictly speaking.  Certainly, by electing the formulation “state or organizational policy,” it seems that the drafters of the Rome Statute were suggesting that non-state actors, if they committed attacks upon civilians that were sufficiently widespread and systematic, could perpetrate the kinds of atrocity crimes the Rome Statute was adopted to address; which is why I believe the majority in the Kenya case had the better view.

Likewise, although I cannot comment on the Gbagbo decision as it is being appealed by the Prosecutor (assuming leave is given), I am grateful to Darryl for pointing out how the Majority exhibits the same trend I highlight in my article which is to disaggregate the statutory requirements and create new elements required to establish crimes against humanity not required by the Rome Statute.  As I note in Crimes Against Humanity in the Modern Age, one of the strangest of these is the requirement, first surfacing as a negative in obiter dictum, then apparently copied into other opinions as a new element, that the Prosecutor must identify what group – national, ethnic, religious, etc. — the civilians belong to in order to demonstrate the existence of an attack.  The introduction of this language into the Court’s case law is unfortunate.  It may be useful to describe the group to demonstrate a policy to attack all those of a certain ethnicity, but unless persecution or genocide is charged, the appurtenance (or not) of victims to a particular group is simply irrelevant to finding that attack upon civilians has been carried out.

Darryl’s comments made me wonder whether I completely support the reintroduction into the ICC Statute of the “state or organizational policy” requirement. (more…)

AJIL Symposium: The Humaneness-side of Humanity – CAH’s Modern Meaning

by Elies van Sliedregt

[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam]

In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg.

For centuries international law has recognized the enemy of all mankind, the hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country.  They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”.

Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met.

Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations.

What to think of this disagreement?  (more…)

AJIL Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible

by Darryl Robinson

[Darryl Robinson is Associate Professor at Queen’s University Faculty of Law]

I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element.

If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently.

Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution.

In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in Gbagbo(more…)

AJIL Symposium: Crimes Against Humanity in the Modern Age

by Leila Nadya Sadat

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]

I am honored to participate in this Opinio Juris/AJIL forum discussion, and wish to thank, in advance, the editors for agreeing to host it, and Elies van Sliedregt and Darryl Robinson for agreeing to comment.

Crimes Against Humanity in the Modern Age emerged out of my leadership of the Crimes Against Humanity Initiative, a multi-year project undertaken by the Whitney R. Harris World Law Institute at Washington University School of Law, and directed by a Steering Committee of distinguished jurists, that, over the course of three years, examined the need for and assessed the feasibility of drafting a new convention for the prevention and punishment of crimes against humanity.  During our discussions it became clear that participants believed crimes against humanity (CAH) charges to be critically important to both international and domestic prosecutions of atrocity crimes, but there was little empirical data to support these intuitions.  I set out to systematically examine every case brought to the ad hoc international criminal tribunals to determine which charges were brought and which were successful in order to get a sense whether or not these could properly be labeled “crimes against humanity courts,” as some scholars have observed. In a second step, it seemed important to see how this analysis would play out at the International Criminal Court (ICC).  Tables 1-6 in the article summarize this data.

Collecting and sorting the data was difficult as indictments at the ad hoc tribunals were often amended, and appeals regularly set aside or added additional counts.  I am indebted to the Harris Institute staff members who assisted me, as well as my research assistants Sam Chaffin and Shishir Jani who pored through the information and reworked it time and time again.  The ICC presented a particular challenge as there are no “indictments” but a “document containing the charges” followed by a confirmation decision, making it sometimes difficult to assess what the charges are in a particular case.  However, based upon the information available on the websites of three of the tribunals – the International Criminal Tribunals for the former Yugoslavia and Rwanda (the ICTY and ICTR) and the Special Court for Sierra Leone (SCSL) – and the ICC, it was possible to ascertain overall prosecution and conviction rates for each of the core crimes.

Interestingly, the data suggested that war crimes counts dominated at the ICTY and SCSL, but CAH (and genocide) counts dominated at the ICTR.  Both the ICTY and the ICTR had conviction rates on CAH that were higher than the war crimes conviction rates; this was not true for the SCSL.   The pattern for cases involving armed conflicts remained relatively stable across all courts and tribunals (and situations at the ICC), and suggest about a 55-45 ratio of war crimes counts to CAH counts, except at the ICTR and for situations at the ICC in which only CAH have been charged.

At the ICTY, only two out of 161 defendants were charged solely with crimes against humanity, representing 1.2 percent of all accused.  At the ICTR, only two out of 90 defendants were charged solely with crimes against humanity, representing 2.2 percent of all accused.  This is in sharp contrast with the pattern at the ICC before which, at the time the article was written, 11 out of 30 accused were charged only with crimes against humanity in the Kenya, Libya and Côte d’Ivoire cases, representing a stunning 36.7 percent of all accused.

Turning to a more normative and qualitative assessment of the data, the article postulates that the increase in “CAH only” cases at the ICC is to be expected because the ICC is a permanent court, created prior to the onset of atrocities in many cases, that can intervene in times of peace, not only once war has begun.  This, in turn, suggests that David Scheffer’s intuition about peacetime atrocity crimes being “pre-cursors of genocide” may also be correct, although more research is required to fully explore this hypothesis.

The article painstakingly analyzes the ICC’s early jurisprudence on crimes against humanity, and concludes that there is some cause for concern.  (more…)

American Journal of International Law Symposium Starts Today

by Chris Borgen

We are pleased to host the American Journal of International Law on-line symposium on the lead articles of the new issue of the AJIL, which were written by Leila Sadat (Washington University) and Eyal Benvenisti (Tel Aviv University).

Today and tomorrow there will be a discussion of Leila Sadat‘s article, Crimes Against Humanity in the Modern Age. The précis of her piece explains that:

This article analyzes the centrality of crimes against humanity prosecutions to the International Criminal Court’s fulfillment of its mandate to prevent and punish atrocities committed in strife-torn regions. Ad hoc international criminal tribunals established in several states will complete their work soon, leaving the Court as the sole functioning international criminal authority. But the Court’s jurisprudence since its 1998 founding raises serious concerns about its interpretation of, and willingness to fully utilize, the powers conferred by its jurisdictional statute.

Darryl Robinson (Queen’s University) and Elies van Sliedregt (VU University Amsterdam) will participate in the discussion of Leila’s article.

On July 24th and 25th the discussion will move to Eyal Benvenisti’s article, Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders. The AJIL summary for that article states:

The concept of sovereignty crystallized in an era when distances were large, and self-sufficiency the aspiration. This view of sovereignty is no longer sustainable and yields inequitable, undemocratic consequences. This article argues that in a densely populated and deeply integrated world, sovereignty should be understood as also involving a trusteeship toward humanity at large. Sovereigns should be required to take into account other-regarding considerations when forming national policies that may have effects beyond their national jurisdictions, even absent specific treaty obligations.

Armin von Bogdandy and Dana Schmalz (Max Planck Institute for Comparative Public Law and International Law), Jan Klabbers (University of Helsinki), and Christopher McCrudden (Queen’s University Belfast) will comment on Eyal’s article.

As always, readers are welcome and encouraged to participate in the discussion via the comments section for each post.

We are very happy to be working with the editors of the American Journal of International Law on this symposium and look forward to the conversation.