[Dov Jacobs is the Senior Editor for Expert Blogging at the Leiden Journal of International Law and Assistant Professor of International Law at Leiden University]
Over the next couple of days, you will discover the fourth symposium published this year by the Leiden Journal of International Law in collaboration with Opinio Juris. The symposia up to now featured dynamic discussions on the pluralist or constitutionalist nature of the international legal order, different aspects of international criminal law, such as the theory of modes of liability or the “good deeds” of defendants, the use of fairness in international environmental law, the impact of the Nicaragua ICJ Judgment 25 years on, and a self-reflection on the nature of the epistemic community of international scholars. This selection is a testimony to the diversity of issues, approaches, views and, ultimately, the diversity of voices, that LJIL aims at promoting. We wish to thank Opinio Juris for providing the space to allow LJIL to move this intellectual dialogue online where it can continue to foster debate in a healthy and constructive way.
And the articles being discussed from Volume 25-4 of the Leiden Journal of International Law will we hope equally enable such debate. The first one tackles the difficult question of defining a group for the purposes of genocide, through the lens of discrimination law, and the second one revisits the normative dimensions of the traditional debate on the extra-territoriality of human rights.
The first discussion has as a starting point the Article by Monika Ambrus entitled Genocide and Discrimination: lessons to be learned from discrimination law. In her piece, the author discusses the difficulties in defining a protected group for the purposes of establishing the elements of the crime of genocide and proposes to borrow from discrimination law to overcome the traditional tension between the “objective” and “subjective” approach to this question. In response, William Schabas, from Middlesex University, suggests that the expanded scope of Crimes against Humanity since its initial (limited) definition in the Nuremberg Charter might ultimately make such discussions on the expansion of the definition of genocide irrelevant. In addition, Frederic Mégret, from McGill University, brings a welcome discussion on the origins of the definitions of groups in nineteen century racialist theories and points to the rather uneasy conclusion that by claiming to protect groups, there is a risk of objectifying them in a way that in fact perpetuates the causes for discrimination in the first place.
Beyond the specific questions raised by the article, I wonder if the comments by William Schabas and Frederic Mégret, as well as the response by Monika Ambrus, should not be taken as an invitation to re-evaluate the place of genocide in international criminal law. I think, as I have argued in the past, that we can debate whether genocide should ever have been thought of as a crime in the traditional sense, given the particular collective dimensions of the act, especially as described initially by Raphael Lemkin. If we move away from the objective approach to the definition of the group, as suggested by Frederic Mégret and Monika Ambrus, all one is left with is a subjective motive (as opposed to intent) for inflicting harm on particular persons, which begs the question of why we should punish certain motives (such as discrimination on perceived racial or religious differences) more harshly than others (say, based on the fact of being tall or wearing reading glasses). Genocide might be better understood as a social fact rather than as a crime, especially given that most conducts of genocide can be adequately covered under international criminal law by crimes against humanity, as pointed out by William Schabas.
The second discussion focuses on Samantha Besson’s article entitled The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts to. In her piece, the author revisits the case of the ECHR on the extra-territorial application of human rights, and suggests that “jurisdiction” cannot be understood purely as a factual exercise of control, but includes a normative dimension that needs to be better defined. Cedric Ryngaert, from the University of Leuven, challenges the clear distinction between the factual and normative exercise of jurisdiction, by suggesting that most situations of factual exercise of power or control will also include a normative dimension. He also suggests that recourse to reasonableness might be a solution to deciding particular cases. Marko Milanovic, from the university of Nottingham, discusses a number of aspects of Samantha Besson’s article, and challenges it on a certain number of levels. He disagrees with some of her interpretations of the existing case-law, as well as her ambition to find an overarching theory to explain it. For him, the case-law can be explained through a political balance done by the Court between the protection of the interests of powerful states and the protection (and therefore) expansion of human rights. In the end, he considers that the article’s proposed approach to jurisdiction is too abstract and does not give answers for specific cases.
While I share Marko Milanovic’s assessment of the current case law as the result of political choices, I have strong sympathy for Samantha Besson’s attempt at theorizing and grounding the question of jurisdiction on sound conceptual foundations. Ultimately, it is a question of methodology and how we perceive our role as legal scholars. Law is a language that has its own logic in creating meaning and predictability. While this language can of course be discarded as a fiction, like any language, I believe that any belief in the possibility of legal science must be accompanied by adopting this fiction as a methodological starting point.
We hope you enjoy the debates, and hope they contribute to stimulate more discussion among the Opinio Juris community. We will be back next year with new symposiums to continue this fruitful endeavor. In the meantime, the Editorial Board of the Leiden Journal of International Law wishes all the readers a pleasant end of year season, and a happy new year 2013.