International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law?Written by James J. Silk
At the beginning of the twenty-first century, we might say of our times, it was the age of human rights, it was the age of genocide and torture, it was the era of abundance, it was the era of hunger, it was the dawn of global justice, it was the enduring night of deprivation and abuse. Despite the relentless reports of atrocities and human suffering, human rights activists and critics alike have recently identified human rights as “the idea of our time, the only political-moral idea that has received universal acceptance,” “the dominant moral narrative for thinking about world affairs,” and “the major article of faith of a secular culture that fears it believes in nothing else[,] . . . the lingua franca of global moral thought.”
Last December, the Annenberg Foundation revealed itself as the anonymous bidder that purchased twenty-one Native American artifacts in a much disputed Paris auction. The items at the center of the dispute included artifacts from the Hopi Nation and San Carlos Apache tribe, among them twenty-four Katsinam—mask-like objects that the Hopi consider imbued by divine spirits. According to the Hopi, the artifacts, which date from the late nineteenth and early twentieth centuries, were stolen from their reservation and should not be treated like commodities. Nevertheless, the sacred items were sold by the Estimations & Ventes aux Enchères (EVE) auction house as part of a larger lot of sixty-six Native American artifacts, generating $1.6 million.
On December 11, 2013, the Indian Supreme Court issued a controversial ruling in Koushal v. Naz Foundation. It upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature.” This decision reversed a 2009 Delhi High Court judgment holding Section 377 unconstitutional in its application to consensual, private sexual acts among adults, including homosexual intercourse. The Supreme Court’s judgment has already been analyzed in detail, with commentators noting its doctrinal flaws and muddled reasoning.
I propose to consider some of the challenges that the addition of jurisdiction over the crime of aggression will present to the International Criminal Court (ICC). Article 5 of the Rome Statute gave the Court jurisdiction over “the crime of aggression . . . once a provision is adopted . . . defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” In the absence of adoption by consensus, adoption required a two-thirds majority. But the amendment would enter into force for all States Parties after ratification or acceptance by seven-eighths of them.
Kampala deferred the activation of the Court’s jurisdiction over the crime of aggression. In the meanwhile, only four tiny states have endorsed it, and others do not appear to be lining up. Moreover, Kampala added carve-outs to the Statute that insulate non-party and non-ratifying states from its application. Nonetheless, in Kampala, the ICC has moved a step closer to exercising jurisdiction over what the General Assembly in 1974 called “the most serious and dangerous form of the illegal use of force.” So it is not entirely academic to begin to consider the implications of the prospective judicialization of the international community’s response to the crime of aggression for, first, the international political system; second, the international legal system; and finally, the ICC itself. But that, as Dostoevsky often said, requires us to go back.
When asked whether the French Revolution had succeeded, a recent Chinese premier responded that, after two centuries, it was still too soon to tell. That means it would be rather unwise to draw any sort of balance sheet on the International Criminal Court at this early stage. In any case, for the International Criminal Court (ICC)—or the French Revolution for that matter—time is not the main difficulty. There is also the thorny matter of what criteria are appropriate for the assessment in the first place.
It would seem simple to grant success with respect to retributive justice in the court’s one conviction so far—except that so many people feel either that Thomas Lubanga is not paying his debt for all of his crimes (for example, sex crimes) or that his fourteen year sentence is insufficient even for those crimes for which he was found guilty. Even setting aside that criticism, it may be more interesting to consider the court’s pursuit of outcomes other than simply meting out retributive justice, for it has always been clear that more is at stake in the ICC’s work than this important but narrow goal, both for better and for worse.
I am honored to be the Inaugural Gruber Distinguished Lecturer in Global Justice. I share Patricia and Peter Gruber’s commitment to educational excellence, global justice and women's rights. I deeply appreciate that they are pushing legal scholars and practitioners to go beyond parochialism and analyze global justice. Today, I would like to analyze how the Rome Statute that created the International Criminal Court (ICC) is modifying the interaction between national legal systems and creating a new U.N. Security Council dynamic.
I have always enjoyed visiting Yale. During the last twenty years, and I have been here on many different occasions. I have attended seminars here and in Latin America which were organized by SELA (Seminario en Latinoamerica de teoria Constitucional y Politica, Latin American Seminar on Constitutional Law and Political Science theory) under Owen Fiss leadership. I had the privilege to be in class with Owen, and also George Priest, and I have been learning from Michael Reisman since I was a young prosecutor trying to control corruption. I have met Drew Days when he was leading the Schell Center, and have discussed corruption problems with Susan Rose Ackerman, foundational legal issues with Paul Kahn and international law with Oona Hathaway. I have admired how then-Dean Harold Koh managed a day-long seminar on how to stop crimes in Darfur. James Silk have made a great contribution to the Office of the Prosecutor by establishing a connection with the Allard K. Lowenstein International Human Rights Clinic. All of you have been a great influence on me and the Office of the Prosecutor, and I hope that in the future, after this lecture, we maintain this interaction.
The European Central Bank’s (ECB) bond purchase program—possibly the most effective anti-crisis tool yet—is compatible with EU law. Both the European Court of Justice (ECJ) and the German Federal Constitutional Court (BVerfG) have recently found the European Stability Mechanism (ESM) to be lawful and have thus solved one of the most controversial issues surrounding EU crisis management in recent years. The legality of the ECB’s bond purchases has been challenged before the ECJ and the BVerfG in distinct proceedings. While the European Court of First Instance has dismissed the action for annulment based on admissibility reasons, the BVerfG has, for the first time in history, referred the case to the ECJ. The ECJ will now rule on the program’s compatibility with EU law and then return the case to the German court. This Article argues that the ECB bond purchase program is compatible with EU law because it is founded on monetary policy. Furthermore, the ECJ is likely to exercise judicial restraint based on precedent, and the amount of discretion afforded to the ECB in pursuing its mandate.
In late October 2013, two U.N. Special Rapporteurs presented their reports on drone warfare to the U.N. General Assembly. Just days earlier, Amnesty International had published an investigation into drone strikes in Pakistan and Human Rights Watch had issued its examination of such operations in Yemen. The rapid-fire release of complementary investigations captured the attention of the media, of blogosphere aficionados, and of the international law community.Commentators seized the opportunity to either pillory the U.S. drone program or leap to its defense. The existence of this divide is unsurprising, for international law is inherently ambiguous. After all, such law is the creation of States that are often unwilling to commit themselves to bright-line rules, especially with respect to armed force, lest they limit their scope of discretion. Room for interpretive maneuver results.
In 2001, Argentina defaulted on more than ninety-five billion dollars in external debt. At the time, this constituted the largest sovereign default in history. Argentina initiated two restructurings in 2005 and 2010, allowing holders of defaulted bonds to exchange their bonds for new debt at a rate of twenty-five to twenty-nine cents on the dollar, thus restructuring more than ninety-one percent of the foreign debt on which it had defaulted in 2001. Hedge funds specializing in trading distressed sovereign debt, such as Elliott Associates, purchased large amounts of Argentinian debt at a significant discount on the secondary market, and “held out”—they refused to join the restructurings and sought full collection of their debt.
In 1986, when the then-dictator of Haiti, Jean-Claude Duvalier, finally fled, I suggested that the international community needed to learn the important lesson that great violence may occur when a tyrant resists pressure to leave office. “What happens when a dictator finds it hard to leave,” I wrote, “because he has no place to go? One result is increased repression, as ever harsher steps prove necessary to crush or harass impatient local opponents.” The solution, I suggested, was that “the world community should establish a formal machinery for facilitating the voluntary retirement of dictators.” Peaceful departures are all too rare.