Bijdrage – Afscheidsrede
7 September 2023 'The Trials and Tribulations of International Criminal Justice'
Prof. dr. Harmen G. van der Wilt 1
19 years ago, I was appointed as professor of international criminal law, at the Faculty of Law of the University of Amsterdam.
During my career as an academic and teacher, I have been struggling with the question: what is the point of international criminal justice (Damaska)? It would be incorrect and a bit cheeky to answer: I have no idea. Yet, I am still muddling and not yet through (I owe this quote to my dear brother Gertjan van der Wilt). The institutional and political weaknesses of the International Criminal Court are well-known to the experts and informed lay people. It largely operates on the basis of state consent, to wit those states that have ratified the Rome Statute, and it lacks enforcement powers. It implies that the Court is dependent on the cooperation of states in the realm of the arrest and surrender of suspects and evidence gathering. The precariousness of the Court's room for manoeuvre is aggravated by the principle of complementarity, which entails that the Court is only authorized to prosecute and try suspects of international crimes, if a state on whose territory the crime has been committed has been found to be 'unwilling or unable' to do the job properly. I won't assert that this is a flaw in the system, because it has been done on purpose. Domestic jurisdictions are supposed to take the lead in bringing suspects to trial. However, the principle displays a paradox: can we expect states whose judicial system has been disparaged or who have even been accused of 'bad faith' to complacently cooperate with the Court?
Recently, as you all know, there has been a lot of tough talk and determination to bring Putin before the International Criminal Court or to establish a special Tribunal that could prosecute him on charges of aggression. The Prosecutor of the International Criminal Court has even moved to issue warrants for his arrest. Let me immediately show my colours: in the current geo-political situation the endeavor is ill-fated. Of course, I fully agree that the man should account for his criminal actions before a criminal court. However, no state would have the audacity to capture and surrender the Russian president, because it would be a suicide mission, as the action would invite immediate retaliation. Rather, states would invoke tenuous arguments, pointing out that Putin as a head of State enjoys personal immunity which would still be absolute, because Russia is not a party to the Rome Statute. Although this line of reasoning has been rejected by the Appeals Chamber of the International Criminal Court in the case against former president Al Bashir of Sudan, states may still attempt to revitalize it, especially if they are not a party to the Rome Statute and therefore have no obligation to cooperate with the Court. (I should perhaps add that I fully agree with my friend and colleague, Dr. Vasiliev, that the issuing of an arrest warrant has at least the beneficial effect that Putin is deterred from travelling abroad and is an inmate of his own country).
For the prosecution and trial of Putin to yield success, a complete and radical regime change in Russia is required. Comparisons with the Nuremberg or Tokyo Tribunal are unwarranted, because Russia is not a vanquished nation and still enjoys the support of mighty powers.
The consequence of international criminal justice being subservient to global politics is that the docks of the International Criminal Court are crowded with little people who can easily be dispensed with, adversaries of the regimes in power and military or political bigshots who have fallen in disgrace. Now I do not suggest that it is unfair or unjust that these people are standing trial, because they have often committed pretty nasty crimes. But one cannot deny that it presents a distorted picture if some of the greatest villains – Putin for sure, perhaps Bolsenaro and Xi Jinping – remain off the hook.
These somewhat sobering and gloomy contemplations are connected to the cardinal issue that has bothered me all these – nearly – 20 years. Is international criminal justice right in focusing on the individual guilt and responsibility of – usually secondary and subordinate – perpetrators? Or should it rather address the structural causes that produced such atrocities? And if the latter would be preferable, how could it be accomplished? It has often been observed that Nazi Germany had reached the abyss and had turned into a criminal state. The regime had inversed the moral universe: acts of human care were criminalized and the vilest abuse was profusely praised. For sure, there were heroes and heroines resisting the brutality, but they often had to pay an awful price. A sizeable portion of the population supported the butchers and a silent majority kept aloof, waiting for better times. Unimaginable atrocities were condoned by millions of bystanders, paralyzed by fear or acting out of opportunism. It is not easy for me to estimate how far Russia has 'progressed' on this road to perdition. One gets the impression that most Russians are either brainwashed by the shameless propaganda or numb, apathetic and suffering from depression.
Obviously, it is unfeasible to prosecute and try all persons that in some way contributed - either by acting, or by simply remaining passive, to the mass criminality that has been able to flourish in this toxic environment. Moreover, their individual guilt would be too slight for convicting them.
This very brief sketch serves to introduce the predicament of international criminal justice. It is hampered by two features of so called 'core crimes' that are inter-related, but still distinct: their collective dimension and the pivotal role of political organisations, read the state. By contrast, (international) criminal justice's focus is on individual guilt/responsibility. This is the legacy of the Nuremberg Tribunal that postulated in its most famous dictum that 'International crimes are committed by men, not by abstract entities.'
Within that paradigm, allowance is made for the moral and legal conviction that some are more guilty than others, which prompted the Tribunal and its successors to single out the political architects of the criminal system, like Goering, Milosevic and Charles Taylor.
In theory, another approach, accommodating the criminal responsibility and punishment of collectives, could have been conceivable. This, however, has never found acceptance in (international) criminal law. I will briefly return to this alternative at the end of my lecture.
During my tenure, I have struggled in my publications with this tension between the political/social reality of international criminality and the legal – individualistic - response. There is no need to rehash this 'past performance'. Rather, I would like to pay attention to the work of others with whom I have been working during my professional career. All those years, I had discussions with academic colleagues, who triggered, challenged and inspired me. I had the privilege to teach and tutor scores of often highly perceptive master's students from the University of Amsterdam and foreign universities, some of them maturing into PhD fellows, who completed a dissertation under my supervision.
All in all, I have been involved in some 25 PhD projects and it would be impossible to even cursorily address and discuss them within the limited time allotted to this farewell address. Instead of making hard and inevitably arbitrary choices, I have decided to opt for a different strategy and focus on the running projects that are still to be completed. All these dissertations in the making touch upon the main challenges to international criminal justice: the collective dimension and/or the systemic nature of international crimes. When I was pondering on their content, it struck me that four of these projects concern the scope and limitations of fact-finding by courts, while the other four engage with the question which person should be prosecuted for what crime. The Pavlovian reaction of criminal lawyers is that such selections are made on the basis of gravity (of the crime) and degree of guilt (of the perpetrator). I will therefore classify my summaries of the PhD's around two concepts, to wit 'fact-finding' and 'gravity or seriousness'. What I wish to demonstrate is that all these PhD projects reveal that the collective and systemic nature of international crime involves specific challenges for the execution of these activities which belong to the core business of criminal law systems.
1) In search of historical truth
First, fact-finding. It is a commonplace to hold that criminal courts are involved in the process of fact-finding, id est in uncovering the truth of what actually happened. In many run-of-the-mill cases, this procedure is rather straightforward: someone's house has been invaded by a burglar, people have engaged in a transaction of illicit goods, like drugs or weapons, someone has been kicked on the head, raped or killed. The damage is palpable and visible and there is often clear evidence, indicating who has done what. The court can move on inquiring whether there are justifications, excuses, or mitigating circumstances that warrant the imposition of a milder sentence. Obviously, this is a rather simplified depiction, because the truth-finding process can be much more complex, especially in intricate fraud schemes, insider trading and other 'white collar crimes'. However, for the present purpose this presentation suffices.
The point I wish to make is that in case of international offences, like war crimes and crimes against humanity, the fact-finding process is, usually, much more difficult. Not so much in terms of what has happened, but why it occurred and who is to be held responsible. Political kingpins who created a toxic atmosphere of inter-ethnic hatred and unleashed massive violence are far remote from the crime scene. Their hands are not stained with blood, at least not in the literal sense. The assessment of their criminal responsibility, their 'linkage' to the crimes makes an analysis of the decision-making process or the chain of command indispensable. As you will appreciate, these issues touch upon the collective and systemic dimension of international crimes. It enables me to introduce the first of my PhD-students.
Mrs. Vessela Terzieva, whose work in progress I supervise with my colleague, Dr. Christophe Paulussen of the Asser Institute, is currently investigating whether a right to the truth for victims as a form of reparation exists or is gradually taking shape. The Inter-American Court on Human Rights has been in the vanguard in postulating that such a right indeed has emerged. However, it immediately begs the question: 'what truth?', or to quote the exclamation of Pontius Pilate during probably the most (in)famous criminal investigation in world history: 'what is truth?'. Are courts, often many years after such crimes occurred, capable of unravelling the complex hierarchical machinery of decision making that was ultimately conducive of flagrant violations of fundamental human rights? Mrs. Terzieva is keenly aware of the fact that courts face an uphill struggle in this respect. As a particular telling example, she discusses the difficulties of Latin-American courts in assessing the criminal responsibility for 'enforced disappearances' of the highest political and military echelons in Argentina and Peru. There are several elements that complicate the courts' task. The most obvious one is that, as long as corpses have not been found, the demise of a person cannot be proven beyond reasonable doubt. The first line of defence of any accused is therefore to flatly deny knowledge and involvement. One should not forget that state officials have the power and the means to dispose of dead bodies. Any plea of 'not guilty' is further facilitated by the physical – and also psychological – distance from the crime. Political powerholders can deny their involvement by contending that instructions have been misinterpreted down the line of command or by obfuscating the paper trail. If denials of any involvement in international crimes would fail to convince the courts, the accused will usually invoke a second line of defence by arguing that the state was facing an emergency situation: the incumbent government was under siege. It was a matter of life and death. By lumping together both defences – one challenging the evidence, the other obtaining the nature of a justification or excuse – the composite gets a two-tier structure. The accused will deny direct involvement in and guilt for the most blatant crimes, while asking for understanding in respect of the detention or even killings of adversaries which are routinely disqualified as 'terrorists'.
It is especially the reference to the underlying, socio-political causes of violence and repression that may tempt courts to engage in a broader analysis of the historical contextual background. It raises the issue whether criminal courts are equipped and even allowed to exceed their primary task - to decide on the guilt or innocence of the accused - and provide a wider historical record. The question has been emphatically denied by Hannah Arendt who held that 'even the noblest of ulterior purposes – the making of a record of the Hitler regime which would withstand the test of history - should not be the court's business'.
The second of my PhD-students, Mr. Nicolai von Maltitz, who is on the brink of completing his dissertation that has been supervised by my colleague Prof. Sätzger from Maximilan University in München and myself, has squarely addressed the topic. Von Maltitz explores whether the International Criminal Court is authorized to engage in historical research beyond the inquiry of the criminal responsibility of the accused. Ultimately, he concurs with Arendt, but he makes an important qualification. He takes the fundamental rights of the accused as normative point of reference which he depicts as 'deontic minimum of individual autonomy'. As any historical investigation requires time-investment, prolongs the criminal procedure and hence the pre-trial detention of the accused, such an investigation would be unwarranted, because the exercise would imply that the procedure would be abused as a tool to accomplish the mission. Consistent with his premise of the respect of the deontic minimum, Von Maltitz identifies an exception to the general rule, to wit the situation that the historical inquiry benefits the rights of the accused. When and how this could be the case requires a brief explanation of the proceedings of the International Criminal Court. The Rome Statute makes a distinction between a – spatially and temporally delineated – pattern of violence during which war crimes or crimes against humanity are committed on a massive scale (for instance, the current armed conflict between Russia and Ukraine) and a specific prosecution and trial of (an) individual suspect. The former – broader violent context – is called a 'situation', while the latter is labeled as a 'case'. The procedural sequence is as follows. The Prosecutor of the International Criminal Court first announces his intention to examine and investigate a 'situation' and subsequently decides which particular suspect he wishes to prosecute and bring before the Court. Such decisions are usually subject to the approval of the Pre-Trial Chamber. It is the policy of the International Criminal Court that no person who has been indicted on account of his being implicated in an international crime will be prosecuted for another crime which falls within the purview of the 'situation'. The backdrop of this policy is that any 'election' of a suspect from the bulk of crimes that are committed is by its nature selective and carries a degree of arbitrariness, so it would be unjust and disproportionate to 'bother' that person again. There is an intriguing analogy with the principle that no one is to be prosecuted for the same offence, with the conspicuous difference that we are not dealing with the 'same crime', but with another crime that is committed within a similar context of violence. Von Maltitz proceeds by arguing that the inquiry whether a crime is part and parcel of a situation requires a deeper investigation into the parameters of the broader conflict and the position of the accused therein. The canvassing of the scope, nature and causes of the violence serves to shield the accused from further interference by international criminal law enforcement and would from his perspective be legitimate.
Von Maltitz' main objection against courts addressing broader historical contexts is that it is time-consuming and detracts from the determination of the accused's guilt, affecting his/her fundamental rights. As international crimes are defined by their being embedded in a larger structural context of an armed conflict or an organisational policy, it is indispensable to draw a line between legally relevant contextual elements and redundant historical embellishment. Consequently, any legal judgment renders an impoverished impression of the background and causes of international crimes.
Interestingly, the specific nature of system criminality, revealing structural and protracted injustice, also offers opportunities for expanding fact finding and historical inquiries. This has to do with the fact that the permanence of the crime thwarts the limitations of temporal jurisdiction of courts. It enables me to introduce the work of a third PhD candidate, Mr. Usay Yasr Aysev, who writes a dissertation under the supervision of my colleague Dr. Sergey Vasiliev and myself.
Like all its predecessors, the International Criminal Court has a limited temporal jurisdiction. Article 11 of the Rome Statute stipulates that the Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute. As the Rome Statute entered into force on July 1st, 2002, all the crimes committed prior to that date would in principle be beyond its jurisdictional reach. However, criminal law doctrine offers an antidote against such a conferral of impunity and this 'device' is the topic of Aysev's research. He addresses the doctrinal distinction between instantaneous and continuous crimes and discusses its implications for international criminal justice. So what is the difference between these categories? Theft and murder are perfect examples of instantaneous crimes. They are consummated and completed at the moment that the property is unlawfully seized, or the victim is killed. On the other hand, (unlawful) imprisonment/ detention and enforced disappearances are continuous crimes, as they last in time, until the prisoner is released or the whereabouts of the lost person are recovered. In theory, therefore, the International Criminal Court could consider to initiate criminal proceedings against persons, suspected of being involved in the repression of political adversaries by means of systematic enforced disappearances, because the crime still lasts. Perhaps you will remonstrate that the Court should not squander its scarce resources on digging up crimes that were committed in the previous century, some 40 or 50 years ago. It should rather focus its attention on present atrocities that are committed on a daily basis. And that is a perfectly fair objection. However, Aysev demonstrates that the topic is relevant for present situations as well, where he refers to Israel's settlement policy in the West Bank, which is currently under scrutiny of the International Criminal Court. The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies features as a war crime in Article 8 of the Rome Statute. Although Israel has vigorously contested this qualification and is not a party to the Rome Statute, Palestine has lodged a declaration, accepting the jurisdiction of the Court, starting from 13 June 2014 onwards. As you will understand, it may be relevant to consider whether the settlement and transfer of Israeli colonists could be characterized as an instantaneous or a continuous crime. In the former case, the Court would only be authorized to assess the population transfers that took place since 2014. One could argue, however, that previous settlements, while starting shortly after the occupation of the West Bank in 1967, persist until this very day and can thus be qualified as a continuous crime. Such an interpretation would allow the Court to widen its scope of investigation into earlier transfers (provided that the settlers are still residing in the West Bank) and address the general practice as a systemic policy of injustice. In other words, Aysev's work is also related to the topic of historical truth finding by (criminal) courts.
I have focused my brief discussion of the practice of fact finding by courts in respect of the assessment of broader, contextual developments as the backdrop and catalyst of international crimes. You may wonder what purposes such deeper inquiries serve, beyond a better understanding of the political, social and psychological mechanisms that are conducive of system criminality. The question takes me to a discussion of the current research of Mr. Petar Finci, who writes a PhD on the (historical) legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY), under supervision of my colleague prof. Nanci Adler and myself.
Mindful of the ongoing controversy between historians, political scientists and legal scholars on the question whether (international) criminal courts are capable and authorized to engage in broader history at all, Finci postulates that the ICTY, as the first International Criminal Court to prosecute more than one side to the conflict, was in a unique position to examine the potential of criminal courts to contribute to historical record. He therefore embarks on the challenging quest to inquire to what extent the Tribunal judgements created narratives of causes, courses and consequences of the wars. In doing so, Finci addresses the wider claim of transitional justice scholars that international criminal trials may exceed the mainstream purposes of retribution and prevention, and contribute to processes of transition towards supposedly, more liberal and democratic societies, by establishing objective truths about past injustices. The pertinent question is: is there any evidence that the ICTY has succeeded in accomplishing this goal? Did the didactic purpose yield fruits? In examining this question, Finci follows a twofold methodology. First, he seeks to examine to what extent the historical record, produced by the ICTY, differs from the dominant national historical narratives, as they emerge in history books that are used in the primary and high school curricula of the countries of the former-Yugoslavia. Next, he investigates whether in these books there are references to the work of the ICTY and if so, how these findings are presented. Are the findings and conclusions of the ICTY predominantly contested, or are there also traces of agreement? And if the latter would turn out to be the case, have authors of schoolbooks mainly concurred with the ICTY when it served their own political purposes, or did they incidentally demonstrate sensitivity to and awareness of 'progressive – historical - insight'. That would certainly point at a – modest – didactic legacy of the ICTY!
I should add that Finci, in the course of his research, has grown more skeptical about his initial methodology, because the historical findings of the ICTY have not been unequivocal and judgements have not been 'unisono'. It implies that national(ist) discourses could 'pick and choose' and use precisely those findings of the Tribunal that sustain their own narratives. As an example, Finci contends that Serbian textbooks could find support for presenting the war in Croatia as a heroic self-defence against aggressive Croatian nationalist politics, while Croatian schoolbooks could remonstrate that a Joint Criminal Enterprise had been established in order to annex parts of Croatia to Greater Serbia. Both factions would be able to invoke judgements of the ICTY, although, obviously, different ones. Nonetheless, such findings are still interesting, as they corroborate the practice of Trial Chambers of the ICTY to engage in the production of wider historical narratives. Simultaneously, Finci's conclusions might imply a warning that one should be cautious not to overestimate the authority of historical findings by courts of law. After all, such confidence would be naïve, if several Trial Chambers within one Tribunal reach diametrically opposite conclusions.
During my brief discourse on the search for historical truth by international criminal courts and the concomitant synopsis of the PhD projects on the topic, the notion of system criminality regularly surfaced. That phenomenon is also key for the understanding of the second concept, 'seriousness or gravity', as I will now try to elucidate.
2) On 'seriousness' or 'gravity'
International crimes are defined and stand out by their being very serious. The Preamble to the Rome Statute makes that immediately clear:
'Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,
'Recognizing that such grave crimes threaten the peace, security and well-being of the world,
Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished (…)'
The notion of 'seriousness' features at other places in the Rome Statute as well, remarkably - phrased in a negative way – as a reason not to pursue criminal investigations. Article 17, s. 1, for instance, mentions 'lack of sufficient' gravity of a case as one of the parameters for the Court to consider a case inadmissible. At first blush, this may appear to be paradoxical: how can a crime not be 'sufficiently serious', if they are categorically qualified as such? The explanation for this oxymoron is that a specific incident within a comprehensive attack – like, for instance, the pillaging of a shed, belonging to enemy civilians, which would technically count as a war crime - has insufficient weight to merit investigation by the Office of the Prosecutor (OTP) of the International Criminal Court.
The interesting question is: what makes war crimes, crimes against humanity, genocide and aggression 'very serious', apart from our gut feeling that they obviously are? The OTP's Policy Paper on Case Selection and Prioritization (15 September 2016) sheds light on this important question. The first three parameters – scale, nature and impact – serve to single out specific incidents which qualify for prosecution (a 'case'). They are largely self-evident and do not require our attention.
The last-mentioned factor – manner of commission – is of special interest, because it alludes to an aspect that gives a clue to the essential reprehensibility and gravity of international crimes. In other words, it does not primarily refer to the seriousness of a specific crime, but rather connotes the categorical depravity of international crimes. As one of the ' manners of commission' the OTP refers to 'the extent to which the crimes were systematic or resulted from a plan or organized policy or otherwise resulted from the abuse of power or official capacity'. It is a crucial observation, because the OTP hints at the relevance of the involvement of the state, either as an active perpetrator of international crimes, or as a relatively powerless institution that cannot stay widespread rebellion, amounting to anarchy. The quotation reminds us of one of the contextual elements of crimes against humanity – 'attack against any civilian population' which is defined in Article 7 s. 2 sub a as a 'course of conduct involving the multiple commission of acts (…) against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack.' The second disjunctive 'or', informs us that the commission of crimes against humanity is not the prerogative of states, but can also be committed by – powerful – non-state organisations. The question what features such organisations should possess was vividly discussed in the Kenya case and kept the judges divided. These details need not detain us. Suffice to observe that only organisations that can challenge the state's monopolization of power are capable of committing crimes against humanity. The contextual gist of crimes against humanity is that the state is either too strong and repressive or too weak. This – either active or passive - involvement of the state defines an international crime and grants those crimes their detestable and highly serious character. The pivotal question is: why is this the case? Because it adds to all the misery and hardship that victims sustain another – fatal – dimension. People have no authority to resort to for protection and redress. They are wading through quicksand. By actively turning against its own citizens or failing to protect them, the state betrays its main calling. After all, most social-contract theorists agree that the state owes its existence and legitimacy in no small measure to its capacity to shield its citizens against mayhem, which is a precondition for leading a happy and peaceful life. David Luban, referring especially to the active repression of people by the state, depicts crimes against humanity as 'politics gone cancerous'. In my view, the dismal situation of people being deprived of essential protection is characteristic of all international crimes, although the 'guilt' of their own state may be attenuated. In the current war against Russia, Ukraine is fighting for its very survival and it cannot save its civilians nor its military from war crimes, at least not completely. In civil wars the situation is particularly vicious, as the antagonists commit war crimes against each other's affiliates, neither of the parties being capable of safeguarding its own people.
If we accept that the role of the state is the defining element of international crimes, augmenting their gravity when compared to 'common' crimes, one could wonder whether the category of international crimes can or should be expanded with other crimes in which the position of the state is less conspicuous. As many of you may know, a proposal to add 'ecocide' as a fifth crime to the material jurisdiction of the International Criminal Court has been elaborated by an Expert Panel and is vividly discussed in the academic community. This initiative allows me to introduce the first PhD-fellow of the second strand, Mr. Hasan Yucel who precisely addresses the question whether such an extension would be warranted and feasible, in view of the deviating features of ecocide when compared with existing core crimes. In answering this question, Yucel is confronted with two challenging issues. First, existing international criminal justice, including the definitions of international crimes, is strongly orientated on human beings, or anthropocentric. There is only one provision in the Rome Statute which mentions the 'natural environment' as a potential victim of the intentional launching of an attack and qualifies this as a war crime. It begs the question whether animals, plants, rivers or even nature as such could be 'rights-holders' under international criminal law. Or, in other words: should trees have standing? Perhaps it is not so far-fetched, as the acknowledgment of legal personality to an expanding circle of living species - and even beyond that - may be considered as a token of increasing civilisation. Yucel and I have discussed the topic many times, mainly by ZOOM, as he lives in Washington DC. As to the question whether animals and plants have 'rights', and require protection, irrespective of whether humans are simultaneously affected by their demise: we are still on the fence…
The second issue is at the core of the topic I just discussed, to wit the central position of the state in core crimes. It cannot be gainsaid that states and multi-national corporations are heavily responsible for the degradation of the environment. The more pertinent question is whether they are exclusively to bear the brunt, while leaving consumers off the hook. Any serious and rigorous response to the impending climate disaster requires drastic measures that are bound to meet with popular resistance. Most of us are not prepared to sacrifice a life of comfort. Multi-national corporations cannot flourish without a virtuously unlimited reserve of consumers. Such arguments are commonly refuted by those who stress the superior powers of organisation and knowledge of multi-national corporations and states vis-à-vis the individual consumer, but the dialectics of demand and supply in the market economy crowded by vocal and informed customers, are likely to restore the imbalance. All this is partially common knowledge and partially higher economics. Translated to the realm of (international) criminal justice, it raises difficult issues on contributory fault in the context of transactions that cause gross and irreparable harm to both humans and nature. While we may all agree that ecocide easily reaches the threshold of gravity, it is far less clear who the perpetrators are. An extra layer of complexity is added by the fact that ecocide – by its very nature – also involves self-inflicting damage, blurring the borders between perpetrators and victims. Hasan Yucel faces the daunting task to shed some light on these problems.
I have postulated that the involvement of the state – either in an active or passive sense – is a crucial feature of system criminality and international crimes, presenting a potential obstacle against the extension of the jurisdiction of the International Criminal Court with the crime of ecocide. A more fundamental – purely legal – hurdle, encumbering any effort to bring the state to justice, even for the acknowledged international crimes, is that states incur no criminal responsibility under international law. The idea that they might is not completely far-fetched. The Draft Articles on State Responsibility still made a distinction between 'crimes et delicts', alluding to the possibility that states could commit crimes. However, Article 25 of the Rome Statute makes it crystal clear that 'The Court shall (only) have jurisdiction over natural persons'. Whether such restriction is a legacy of the strongly individual orientation of (international) criminal justice, or rather reflect the deference to state sovereignty is a matter of controversy. International criminal justice is probably hampered by both 'principles'. To be sure, they have suffered erosion in legal development. Many national jurisdictions acknowledge corporate criminal liability, also in respect of international crimes. And both personal and functional immunities for the highest representatives of the State have been abolished before international criminal courts and tribunals, a development that questions the state's sacrosanctity. Still, personal immunities for incumbent heads of state persist in inter-state relations and state immunity is absolute, both before national and international criminal courts.
The state's inviolability in criminal matters is an incentive to explore other avenues to hold the state accountable. Mrs. Kate Clark, who writes a PhD under the supervision of my colleague Liesbeth Zegveld and myself, takes the victims' quest for redress as point of departure and investigates whether they can sue the state in civil proceedings to obtain satisfaction/reparation for war-related damage. In her research question she seeks to figure out, first, 'whether a right to reparation truly exists in international law, for civilians who have suffered damage, injury or death in the context of armed conflict, whether in the context of lawful warfare or as a consequence of war crimes.' Provided that this question is answered in the affirmative, Mrs. Clark turns to her second query, in search of the identification of the person or entity that bears the correlative responsibility to make such reparations. Addressing both issues in tandem, Mrs. Clark has meticulously examined civil courts' decisions in Belgium, Germany and the Netherlands on reparation claims, often related to tragedies like the fall of Srebrenica and other instances where those countries were involved in UN Operations. In this context, immunity and sovereignty problems are less conspicuous, because the plaintiffs litigate against their own state, which implies that inter-state sensitivities are not at issue. However, other legal hurdles readily surface. For one thing, the victim's right to a legal remedy has come to fruition within the realm of human rights, especially by the efforts of the Inter-American Court of Human Rights and the European Court of Human Rights. Armed conflicts are governed by International Humanitarian Law (IHL). Though it is generally acknowledged that human rights cannot be completely suspended during armed conflicts, IHL and International Human Rights Law are separate legal regimes. The former (IHL) probably offers states more leeway to invoke necessity or emergency as a defence to mitigate or deny responsibility and challenge the claims for reparation. Secondly, these national judicial decisions mainly concerned cases of military activities in foreign territory, which prompts the question whether the harmful conduct can be attributed to the state. Such attribution involving responsibility would only be warranted if the state, by means of its military or civil powers, wielded effective control over an area outside its (territorial) jurisdiction. Case law of the European Court of Human Rights sheds light on this issue. One of the most fascinating aspects of Mrs. Clark's research is that she can witness and comment on the evolving dialogue between the European Court and domestic courts, gradually shaping the normative framework in respect of the obligations of states towards victims of armed conflict.
As long as the state itself is 'untouchable' for international criminal justice, the logical alternative is to prosecute and try its officials. There are several possibilities in criminal law doctrine to link people in leadership positions to international crimes. One of the favourites of the International Criminal Court is the concept of perpetration through an organisation, which is a creative extension of 'commission of a crime through another person' (Article 25, s. 3 sub a Rome Statute) and is an invention of the German scholar Claus Roxin (Organisationsherrschaft ). The idea is that a person, sitting behind his desk, would be responsible for heinous crimes, if he concocted a plan of repression and mass murders and would be certain that the plan would be executed by the 'cogs in the machine'. The paradigmatic case was Eichmann who stood model for the 'Ideal type of the Schreibtishmörder'. It is a matter of controversy whether this concept, which emanated from a historically specific context of a tightly organized bureaucracy, could also be applied in case of more loosely structured organisations, like African rebel groups. The doctrine of superior (or command) responsibility offers more solid ground, as it is incorporated in Article 28 of the Rome Statute. Essentially, it provides for responsibility on the basis of a failure to exercise control by a superior over his subordinates who engage in international crimes. Responsibility is predicated on the power of the superior over his subordinates ('authority/effective control'), previous knowledge that his subordinates were committing or about to commit such crimes (or at least a 'duty to know') and a subsequent omission to take the necessary and reasonable measures to prevent or repress the commission of the crimes. Embedded in the realm of military command, the doctrine has been expanded - with the necessary modifications - to sustain the responsibility of civilian superiors. The concept, while frequently applied by international criminal tribunals and the International Criminal Court, suffers from an internal contradiction. After all, failure to exercise control will often imply loss of such control, which is a prerequisite for holding the superior responsible in the first place. This structural weakness has been depicted as the control paradox. This finding has inspired Ms. Anna Lena Hörzer, whose PhD research I supervise with my colleague Erika de Wet from Graz University, to embark on a broader investigation into preventive responsibilities in international law. Following other scholars, she attempts to forge a link between state accountability and individual (criminal) responsibility. Ms. Hörzer identifies a number of common features that sustain the responsibility to prevent in all these regimes. A crucial element is that war is a very dangerous enterprise, which imposes a duty of due diligence on those who engage in it. A hierarchic system of power relations, enabling the exercise of effective control, serves the compliance with the obligation to reduce war's most harmful consequences. War crimes imply that the danger has materialized and yield prima facie evidence of a dereliction of duty on the part of the person or entity in charge, provided there was circumstantial evidence of the (risk of their) occurrence. Rather than investigating organisational structures in the abstract, Ms. Hörzer aims to take actual cases of wrongdoing in consideration, in search of elements that underpin the responsibility of states and political/military leaders, falling short of their due diligence obligations. By this deductive process, she hopes to find some clues to solve the control paradox.
We are now approaching the end of my farewell address, which leaves me to introduce my final PhD candidate, Mr. Jonathan Kwik, who writes his dissertation under the joint supervision of my colleagues Tom Engers, Terry Gill and myself. I must admit that to fit his research in the matrix of my discourse was a challenge, causing some headaches. However, I think that I found a solution for this quandary. Kwik addresses the topical subject of the application of AI (Artificial Intelligence) in war fare. The focus is on AI-enabled capabilities and within this category Kwik devotes his attention to AI's with the function Use of Force, or – in his own words – 'those AI's that replace one or more tasks in the critical decision loop that leads to the use of force.' He acknowledges that such use may be a blessing or a curse. On the one hand, AI's may compensate for human frailty, like fatigue or bias. In that case, the application will for instance improve compliance with the principle of distinction, stipulating that only military objectives and combatants – and not non-combatants, such as civilians – are to be attacked by deadly force. On the other hand, however, AI's inherent feature of 'opaqueness' – id est the unintelligibility of the decision-making process within the system – and deferred decision-making inevitably increase the distance between the human, deploying the system, and the decision. All is well, if the system simply obeys the instructions of its master, but what if the system mistakenly takes an innocent shepherd for an enemy combatant, because of the likeness of his garment to the adversary's uniform? Could the human deployer claim lack of responsibility by pointing at the system's fault? A complicating factor is that in the example we still assume good faith on the part of the military personnel applying the device. But the use of AI may also enable the deployer to conceal the commission of a war crime, if he puts the blame on the system going awry. The doctrine of superior responsibility might serve as an adequate antidote to counter such attempts to pass the buck on subordinate executioners. However, the analogy is partially flawed, because the doctrine of superior responsibility is predicated on subordinates being of flesh and blood. Apart from AI obviously lacking that quality, it has the dismal consequence that the system itself cannot be punished which potentially creates a gap of responsibility. 'Indirect perpetration by means of another person' who serves as a tool in the hands of the perpetrator appears to be a more appropriate fit, the human 'puppet' being replaced by a technical device. The problem here is that the AI obviously does not slavishly follow the directions of the deployer, but appears to display a 'will of its own'. The transplantation of modes of liability that are geared to human interaction to the use of AI is a difficult puzzle that mirrors the broader challenge of applying IHL to technical innovations. With his mercurial mind, Kwik familiarizes himself with criminal law concepts, like mens rea and actus reus, while showing remarkable patience in explaining the basics of AI to lay people like myself.
After having offered a synopsis of the work of the eight PhD-fellows that are currently under my supervision, I would like to share some final reflections. What is an international crime? What are the causes of those crimes and who is to be held (most) responsible for them? And what can international criminal justice do to redress those crimes? These are the questions that have preoccupied me during my tenure. As I have tried to explain, the answers are inter-related. International crimes stand out for their gravity. And they are precisely so serious, because of the pivotal role of the state, either in an active capacity, or by proving inept to perform its task. In turn, the preponderant position of states reduces the room for manoeuvre and efficacity of the International Criminal Court and international criminal tribunals. We are condemned to live in a society of states. The system is far from perfect, but I lack the imagination and intelligence to conceive of an alternative. The state is equipped with two fundamental weapons – the sword and the shield – to reign in human passions and excesses. When things go awry – the state abuses the sword against its own people or other civilians; the state is too weak to carry the protective shield – the abyss of international crimes is opened. The International Criminal Court is not allowed nor capable to prosecute and try states, largely because it is operating within the state system and dependents on it. Instead, it should focus its attention on the prosecution and trial of those in leadership positions, because they created the context in which international crimes can thrive. From a moral – and even from a legal - point of view, that is relatively easy to defend. Power-politics present the greatest impediment. Here the sovereignty reflex enters by the back door, despite all earnest efforts to remove the legal obstacles, like immunity. Yet, the International Criminal Court and the state community is to persevere in bringing Putin and Assad to justice, although that may take some time. Collective responsibility is in my view not a proper alternative, because it has no place in criminal law. I obviously acknowledge the collective nature of international crimes and admit the tension between law and reality. However, individual criminal responsibility owes its existence to the repulsion against punishing innocents, which is exactly what will happen in the case of collective (criminal) responsibility. For the same reason, the International Criminal Court should steer clear from addressing structural injustice and remain focused on the international crimes in the strict sense. We may all be bewildered by the ever-increasing gap between the perversely rich and the appallingly poor and recognize that this gap may be one of the root causes of climate heating, widespread environmental degradation and even – more indirectly - international crimes in the strict sense. However, such injustice cannot be transposed into concrete, unlawful acts, which is a requirement of the principle of legal certainty. Moreover, the dilution of responsibility into countless and infinitely small causal contributions leaves no other option than to resort to collective responsibility ad absurdum: where all are responsible, no one is. Those who are in favour of the International Criminal Court expanding its jurisdiction over structural injustice have a quaint idea how criminal law works.
Over nearly 25 years – I started my career at the University of Amsterdam (UvA) as an associate professor, before becoming full professor – the Faculty gave me free reign in pondering on these issues. It has not always been a stroll in the park, of course. Dean André Nollkaemper once observed, with his characteristic sense of understatement: 'Harmen, you are good in research and lecturing, but management is probably not your strongest quality.' To be quite honest: I had already reached a similar conclusion based on previous experience. The call of duty prompted me to serve twice as (interim) head of the section. I realized then that this was not 'my cup of tea.'
However, all in all, the balance definitely tips favourably. I got acquainted with scores of nice, intelligent colleagues, some of them rather funny characters. UvA was - and to a certain extent still is – a safe haven for mavericks. We discussed in small groups arcane texts of Habermas, Derrida and Honnet, beyond the regular curriculum, out of sheer curiosity. The Faculty offered me the opportunity to travel to Ethiopia and Russia – during the short-lived aftermath of Glasnost and Perestroika - where I participated in lecturing courses on international criminal law for judges and prosecutors, or participated in the establishment of inter-university cooperation. My colleague, prof. Goran Sluiter, and I became connected with professors George Fletcher and Jens Ohlin from Columbia Law School and the four of us stood at the cradle of the Joint Master in international criminal law of the UvA and an ivy league university. And I had a modest part in a number of high-profile cases, like the Demjanjuk saga, the Julio Poch-case and the tragedy of MH17, mostly as a commentator.
I will refrain from mentioning people to whom I owe special gratitude. I would not know where to start, or where to end and I most certainly will forget some. It has been an honour and a pleasure.