To respond effectively to Austin and Henkin, it is necessary to consider not only whether international law is possessed of “teeth”, but also the extent to which these teeth operate consistently and independently of political intervention. I will focus here on what I consider to be the two most significant developments in international criminal law over the last two decades: the creation of the International Criminal Court (ICC) through the Rome Statute of 1999, and the rise and fall of the doctrine of universal jurisdiction across various national legal systems. In many respects, both appear to have been rather successful in promoting individual accountability. For the first time, there exists a permanent and independent entity at the global level capable of prosecuting individuals charged with grave violations of international humanitarian law. Similarly, at the national level, many individual states have begun asserting the authority to prosecute such violations that occurred outside their borders.

The ICC has many shortcomings, including the inability to exercise territorial jurisdiction in states which have not ratified the Rome Statute. This conceptually precludes the court from being truly “universal”, but it is a difficult obstacle to surmount due to the primacy of sovereign equality in our international legal order. Far more practical to address are the legislative measures taken by individual states with regard to universal jurisdiction, and the discrepancies between states’ pronouncements on the topic and their concrete actions.

By way of example, Canada prides itself on being the “first country to [have incorporated] the obligations of the Rome Statute into its national laws” through the Crimes Against Humanity and War Crimes Act of 2000.[3] This far-reaching piece of legislation actually goes beyond the scope of the Rome Statute in many respects, for example by incorporating elements of universal jurisdiction and retroactive applicability. Yet, despite having had numerous occasions to prosecute individuals for war crimes over the last decade – authorities just recently published the names of 30 alleged war criminals living in Canada[4] – only two prosecutions under the Act have been initiated.[5]

In a prominent ongoing case, accused Serbian war criminal Branko Rogan faces revocation of his Canadian citizenship and deportation rather than a trial,[6] even though the ostensible purpose of the Act is to enable war criminals to be brought to trial in Canada. Jillian Siskind, the president of Canadian Lawyers for International Human Rights, notes that Canada’s preference for deporting accused war criminals rather than prosecuting them means that such people will usually never face trial due to a lack of will or capacity in their home countries, and may in some cases face the risk of torture.[7] The reason war crimes cases are rarely tried domestically in Canada can be found in art. 9(3) of the Act, which requires “the personal consent in writing of the Attorney General or Deputy Attorney General” for a prosecution to commence. This requirement makes the process inherently political. War crimes trials are expensive and often politically inexpedient;[8] but should political expedience trump the pursuit of justice? Amnesty International argues that it should not. The organization is one of several to have presented credible arguments in favour of indicting George W. Bush for war crimes on his recent visit to Canada.[9] Regardless of its judicial merit, it is difficult to imagine many Canadian politicians – much less a Conservative cabinet member – signing off on such a move (and no less difficult to imagine a former US president standing trial in his own country on such charges).

Many countries which recognize the principle of universal jurisdiction impose political constraints similar to Canada’s on its invocation. During the 1990s, a number of European states implemented extremely broad legislation asserting universal jurisdiction over a wide range of crimes, while the subsequent decade saw these measures drastically scaled back.[10] The UK, which asserted universal jurisdiction over certain war crimes as early as 1988, recently amended its procedure to require applicants seeking an arrest warrant for such crimes to gain approval from the director of public prosecutions (a political appointee). This reform came in the wake of repeated attempts to indict Israeli military and political leaders in British courts, which the government deemed harmful to its foreign policy interests.[11]

Universal jurisdiction is even more politically constrained in the United States: expansive anti-terrorism statutes have allowed US courts to exercise universal jurisdiction over crimes committed by the governments of North Korea and Iran, but the same courts declined to pass judgment on alleged crimes committed by US-ally Israel in deference to the executive branch.[12]

Although the US, UK, and Israel have all invoked universal jurisdiction domestically,[13] it is perhaps a striking illustration of power politics that despite their high levels of belligerency nationals of those countries have never faced prosecution before foreign or international tribunals for war crimes. The US and Israel in particular have taken aggressive legislative and diplomatic measures to prevent the doctrine from being applied against their citizens.[14]

While recognizing that the efficient conduct of international relations likely necessitates some sort of barrier (along the lines of diplomatic immunity) to prevent citizens from spuriously enmeshing foreign officials in legal proceedings, serious reforms should be advocated to depoliticize international criminal law and thereby bolster its credibility. Legal norms for invoking universal jurisdiction should be standardized across states, and barriers to initiating proceedings should be strictly judicial in nature rather than overtly political. Measures such as these would restore faith in international law by further advancing the positive trend toward individual accountability while at the same time clearly conveying the message that the same standards apply to the powerful and weak alike.

[2] Ibid. at 3.

[3] Canada’s Crimes Against Humanity and War Crimes Act, Implementing the Rome Statute (Retrieved 24 October 2011), online: Foreign Affairs and International Trade Canada <http://www.international.gc.ca/court-cour/war-crimes-guerres.aspx?lang=eng&view=d>.

[4] Paola Loriggio, “Feds Ask for Public’s Help to Catch Alleged War Criminals in Canada Illegally” 680 News Radio (22 July 2011), online: 680news.com < http://www.680news.com/news/national/article/256714–feds-ask-for-public-s-help-to-catch-alleged-war-criminals-in-canada-illegally>.

[5] Successes, War Crimes (Retrieved 24 October 2011), online: Department of Justice Canada <http://www.justice.gc.ca/warcrimes-crimesdeguerre/successes-realisations-eng.asp>.

[6] Adrian Humphreys, “The Cost of Being Stripped of Citizenship” National Post (10 October 2011), online: nationalpost.com <http://news.nationalpost.com/2011/10/10/the-cost-of-being-stripped-of-citizenship/>.

[7] Catherine Solym, “A Presumption of Guilt” Montreal Gazette (26 November 2011), p. B1.

[8] The only war crimes trial to have been successfully concluded in Canada to date, that of Desire Munyaneza, cost an estimated $4 million.

[9] Olivia Ward, “Canada Urged to Arrest George W. Bush on B.C. Visit” Toronto Star (13 October 2011), online: thestar.com <http://www.thestar.com/news/article/1069594>.

[10] See e.g. “European States Confronted with Impunity: Report on Universal Jurisdiction in Europe” (Alkarama, 2010), online: scribd.com < http://www.scribd.com/doc/30232948/Report-on-Universal-Jurisdiction-April-2010-Alkarama>. Representative of this trend, Belgium for example implemented some of the most far-reaching legislation in 1993 but effectively repealed it 10 years later.

[11] Universal Jurisdiction, Ministry of Justice Press Release (15 September 2011), online: UK Ministry of Justice <http://www.justice.gov.uk/news/press-releases/moj/pressrelease150911a.htm>.

[12] Daniel Haboucha, “Waging Lawfare” Canadian Lawyer Magazine (1 November 2011), online: canadianlawyermag.com < http://www.canadianlawyermag.com/Waging-lawfare.html>.

[13] The US and UK as discussed above, and Israel in its 1961 prosecution of Adolf Eichmann.

[14] See e.g. the American Servicemembers’ Protection Act, described by various NGOs as “anti-ICC legislation”, discussed in Sean D. Murphy, Principles of International Law (Thomson West, 2006) at 428.

The international community has repeatedly affirmed its commitment to Palestinian self-determination. In general terms, its normative obligations to the Palestinian people can be divided into three categories. First, there is a moral duty, arising both from humanitarian interest and from the international community’s exceptionally pronounced role in the protracted conflict between Israelis and Palestinians, to advance peace and reconciliation between the two parties. Second, there is a general legal duty, stemming from the preambles of the UN Charter and the International Covenant on Civil and Political Rights to promote respect for the Palestinians’ human rights, which have been recognized as including the collective right to self-determination.[1] Third, there is a specific legal duty, rooted in the Geneva Conventions, to protect the rights of Palestinians living under Israeli occupation by ensuring Israeli compliance with international humanitarian law (IHL).

Effects of UN recognition on the parties’ compliance with international law

Israeli settlements in the West Bank, often built on stolen private land,[2] have for 44 years increasingly curtailed non-Jewish residents’ access to justice, civil rights, and public resources, creating a situation that several Israeli leaders, including former prime ministers Barak and Olmert, have compared to apartheid. At a time when peoples across the Middle East are rising up en masse against oppressive regimes, it is clearer than ever that the status quo in Palestine is both morally intolerable and logistically untenable.

Common article 1 of the Geneva Conventions obligates all states to “ensure respect for the present Convention in all circumstances.” According to the authoritative commentary of Jean Pictet of the International Committee of the Red Cross, it follows from this that states should endeavour to bring Contracting Parties who violate their obligations “back to an attitude of respect for the Convention.” This “attitude of respect” contrasts starkly with the cavalier indifference consistently demonstrated by Israel with regard to the settlements, which is perhaps best characterized by the 1967 remark of Defense Minister Moshe Dayan: “Settling Israelis in occupied territory contravenes, as is known, international conventions… but there is nothing essentially new in that.”[3]

There is little international contention that Israel’s settlement project violates art. 49(6) of the Fourth Geneva Convention. This the legal position of every country in the world aside from Israel — even the Harper government in Canada, which Israeli foreign minister Avigdor Lieberman has referred to as Israel’s best friend in the world, has affirmed (albeit after much hemming and hawing) Canada’s longstanding position that “Israeli settlements in the occupied territories [the Golan Heights, the West Bank, East Jerusalem, and the Gaza Strip] are a violation of the Fourth Geneva Convention.” This was the unanimous legal finding of the International Court of Justice across its majority and dissenting opinions in the 2003 Wall reference. It was even the legal position of the Israeli govenment’s own legal advisor and justice minister at the time that settlement construction began in 1967.

Far from fulfilling its legal obligation to bring Israel back from its attitude of blatant disregard to one of “respect” for the Geneva Conventions, much of the world, including Canada, has adopted policies which signal implicit acquiescence to Israeli violations of IHL. For example, while the European Union excludes products manufactured in Israeli settlements from preferential import tariffs under its separate trade agreements with Israel and the Palestinian Authority, the Canada-Israel Free Trade Agreement continues to accord preferential treatment to such products. The Canadian government also gives tax credits for donations that help settlement construction.

Palestinian UN membership would do much to encourage Israeli compliance with IHL, especially by granting Palestine access to the International Criminal Court. Should Palestine choose to accede to the Rome Statute (with the caveat that this would necessitate Palestinian compliance with IHL as well, and potentially expose many Palestinian actors to war crimes charges themselves), and should the ICC accept jurisdiction over settlement crimes (as it likely would, non-retroactively, on the basis of complementary territorial jurisdiction given that Israeli courts have deemed the overarching legal question non-justiciable), Israeli officials involved in settlement construction, up to and including the prime minister, could conceivably face prosecution for war crimes in the Hague. Pursuing war crimes charges against Israeli officials would surely prompt retaliatory measures from Israel, but the looming threat — even if not acted upon — would exert massive pressure on Israel to discontinue settlement construction (as it committed to doing in 2003) and stand a good chance of succeeding where 18 years of negotiations have failed. Given other countries’ failure to pressure Israel to halt its settlement activity, enabling the Palestinians themselves to do so through international legal forums would satisfy the art. 1 obligation to promote compliance with the Geneva Conventions, and is therefore a good legal reason to support the UN bid.

Effects of UN recognition on the legal status of Palestine

Contrary to popular belief, statehood is not an attribute bestowed upon entities at the leisure of the UN. The most widely-accepted legal definition of statehood, stemming from the Montevideo Convention of 1933, requires states to have (in order of importance from least to greatest) a permanent population, defined territory, effective government, and the capacity to enter into international agreements. Of importance to note with regard to the second point is that border disputes do not disqualify an entity from statehood. According to the constitutive theory of statehood, statehood arises vis-à-vis other state actors when satisfaction of the aforementioned criteria is recognized at a bilateral level — that is, if Venezuela or the Arab League recognize Palestinian fulfillment of the Montevideo criteria (i.e. the existence of a Palestinian people, territory, and government) and establish international relations with it, than Palestine legally becomes a state vis-à-vis Venezuela or the Arab League.

According to self-determination theorists (a subset of the constitutive school) it is also important to consider just what type of state Palestine would be. Would it be democratic? Tolerant of minorities? Self-determination theorists argue that if the answer to these questions is negative, recognition should not be extended to it even if it meets the Montevideo criteria — a view which is gaining prominence in international legal thought. For example, in 1992 the Badinter Commission initially declined to recognize the newly-formed state of Croatia, citing constitutional shortcomings regarding the protection of minorities. This trend in international law signals a far greater concern for states’ domestic affairs than that exhibited by the drafters of the Montevideo Convention, and could pose problems for Palestine’s bid for recognition. Among other concerns in this regard (mirrored as they may be in Israel) are the Palestinian government’s denial of Jews’ historic connection to Judea, laws categorically banning the sale of land to Jews, and the Palestinian ambassador to the UN’s recent comment to the effect that he sees no room in a Palestinian state for Jewish citizens (currently 510,000 Jews live in the West Bank and East Jerusalem). The UN might — and should — seek to clarify Palestine’s stance on minority rights and democratic accountability before extending it recognition as a state.

If an entity acquires statehood status vis-à-vis the UN it gains access to a wide range of international institutions such as the ICC and the ICJ. There are two ways for an entity to acquire statehood status vis-à-vis the UN: one is through full membership — which is the most robust form of international recognition — and the other through a declaratory resolution of the General Assembly. Acquiring membership requires a super-majority of nine votes at the Security Council, no veto by any of the five permanent members, and a two-thirds majority of 129 votes at the GA; it is also conditional upon acceptance of the UN Charter. If Palestine’s bid for UN membership fails, as it is believed that it will, the PLO will likely seek a special GA resolution, passed by a simple majority, declaring Palestine to be a state and granting it access to a range of international forums.

Even this would be a diplomatic victory for the PLO, by modifying the conceptual framework through which its conflict with Israel is viewed. Instead of treating Palestinians’ exercise of their right to self-determination as a concession to be granted by Israel, it would reframe the negotiations as a dialogue between sovereigns over borders and security. Simply legitimating use of the word Palestine in popular discourse has already been an incalculable moral victory.

Effects of UN recognition on the legal rights of Palestinians

Oxford law professor Guy Goodwin-Gill argues that it is legally problematic for the PLO to seek to replace itself as the “sole legitimate representative of the Palestinian people” with a Palestinian state, as the Palestinian people represented by the PLO comprises a large and scattered diaspora. By redefining the Palestinian people as territorially limited to the West Bank and Gaza Strip, the PLO would be leaving the majority of its constituents bereft of international representation without their consent — arguably violating a fiduciary duty to represent their unresolved legal claims against Israel.

I find this reasoning uncompelling. There is no conceptual problem with the state of Palestine granting citizenship to and/or acting on behalf of all Palestinians who are currently represented by the PLO, much as the state of Israel often claims to represent all Jews. While the PLO’s efforts to seek recognition of a Palestinian state east of the 1949 armistice lines do indeed limit its ability to seek the repatriation of Palestinian refugees west of the Green Line, the PLO is entitled to set its own priorities. Invoking the Universal Declaration of Human Rights, Goodwin-Gill argues that the PLO has no legal authority to effectively waive the rights of its constituents without their approval; however, democratic legitimacy has never been an accepted prerequisite for UN representation.

Effects of UN recognition on the legal status of the Israeli occupation

A common misconception is that international affirmation of Palestine’s statehood would render the Israeli occupation illegal; in fact, it would have no bearing on its legal status whatsoever.

Occupation, under IHL, is not a crime. Proponents of the view that the Israeli occupation is illegal base their arguments in jus ad bellum, arguing that Israel’s possession of the occupied territories resulted from a crime of aggression. I disagree with this assessment; in my view, an analysis of the events leading up to the war which begat Israel’s conquests — in particular Egypt’s threats against Israel, its deployment of troops, and its expulsion of UN peacekeeping forces days before the war broke out — tends to support Israel’s contention that its attack against Egypt on June 5, 1967 and its ensuing war with Jordan and Syria were legitimate acts of self-defense.

Accordingly, Israel’s initial occupation of the West Bank and Gaza was legal, and it remains legal until the Palestinian people have reasonably reassured Israel that its withdrawal would not jeopardize its security (regrettably, Israel has never indicated the circumstances under which it would consider this criterion satisfied). This is not to deny that grave violations of IHL and international human rights law have been and continue to be perpetrated by the military regime, but the illegality of such acts should not be confused with that of the occupation itself.

Barring the unlikely prospect of military intervention, there is nothing the UN or anyone else can do that would obviate the need for Palestinians to negotiate a withdrawal with Israel by addressing its security concerns.

Effects of UN recognition on Palestine’s bilateral negotiations with Israel

The main criticism of the Palestinians’ UN move is that it will accomplish nothing, as at the end of the day the Palestinians need to achieve independence from Israel, not from the UN. Critics claim that the PLO is not trying to build a state, but merely weaken and sideline Israel, and that UN recognition would reinforce Palestinian rejectionism by creating the semblance of an alternative to direct negotiations.

There is little doubt that the UN initiative will increase international pressure on Israel and improve the Palestinians’ bargaining position. However, this in turn may actually help move the peace process forward, in much the same way as the domestic and international consequences of the limited-aims war waged by Syria and Egypt against Israel in October 1973 generated sufficient pressure on Israel for it to make the concessions necessary for peace with Egypt — concessions it had been unwilling to make beforehand. As things stand now, Israel holds virtually all the power in its relationship with Palestine, and there is a general consensus among its allies as well as its enemies that Israel simply lacks incentive to move forward with talks. Personalities ranging from former US president Bill Clinton and European heads of state to Netanyahu’s own father have publicly intimated that the Israeli prime minister is more interested in obstructing negotiations than advancing them. Under the patronage of Netanyahu and his political allies, the Israeli settler population has nearly tripled in the last 18 years alone and continues to grow, and there is unanimous international consensus that the creation of such “facts on the ground” is anathema to peace talks. Israel’s international isolation, which is at a more pronounced level than it has been since the 1970s, makes it particularly susceptible to outside pressure to make the concessions deemed necessary for talks to move forward.

Other arguments have been made against the Palestinian initiative. Some suggest it might lead to violence, others that there is nothing inherently desirable about creating a Palestinian state that will likely be poor, undemocratic, intolerant of minorities, lacking in civil liberties, and embroiled in internal and external conflict. Israelis have very legitimate fears that Palestinian statehood will threaten their security, and Palestinians have very legitimate fears that it will prejudice refugees’ rights. Nevertheless, in light of the impasse that has brought negotiations to a standstill, the massive power imbalance between the parties, the parties’ declared preference for a two-state framework for resolving the conflict, and the near-certainty that a continued deadlock would result in renewed violence, I would view UN recognition of Palestinian statehood as a decidedly positive development from the perspective of advancing the peace process.

Israel, the PLO, and the UN having all accepted the two-state framework, the Palestinians are now urging the international community to stand by it in deed as well as in word by according Palestine the same recognition as any other nation. As the UN bid appears to be the most viable option for advancing negotiations, ensuring respect for the Palestinians’ individual and collective human rights, and promoting compliance with international humanitarian law, it can easily be argued that countries have both a moral and legal duty to support it. On the other hand, it leaves all of the core issues unresolved, and current trends in international law suggest that new states should be obliged to meet minimum thresholds for democratic legitimacy and the protection of human rights which it is not clear that Palestine has yet achieved. At the end of the day, to be sure, countries’ decisions on whether or not to recognize Palestinian statehood will be based overwhelmingly on political factors; yet one might hope that legal considerations such as those I have sought to address here will also play a role in the debate.

[2] According to a report compiled by the Israeli NGO B’tselem, 21% of the built-up area of Israeli settlements is on land that the Israeli govenment recognizes as privately-owned by Palestinians, in contravention of Israeli law and court rulings. See By Hook and Crook: Israeli Settlement Policy in the West Bank (2010).

[3] Cited in Gorenberg, G. The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (Times Books, 2006).

On 26 February 2011, the UN Security Council unanimously referred the situation in Libya to the Prosecutor of the International Criminal Court (ICC).[2] Just under six years ago, the Security Council referred the situation in Sudan to the ICC.[3] Both referrals were made pursuant to Chapter VII of the UN Charter, that is, in response to a threat to international peace and security.[4] Neither Libya nor Sudan are States Parties to the Rome Statute, the ICC’s foundational document, and both retain and use the death penalty as a mode of criminal punishment.[5]

Both States’ retention of the death penalty, far more remarkable today than it would have been years ago, is markedly at odds with the ICC’s relatively lenient sentencing scheme, whose most severe punishment is a term of life imprisonment,[6] to be served under conditions “consistent with widely accepted international treaty standards governing treatment of prisoners.”[7]

The ICC’s principal objective is to ensure the most serious crimes of concern to the international community as a whole do not go unpunished.[8] In the event that the ICC tries and convicts anyone in connection with either of the Security Council-referred situations, the result may challenge basic notions of fairness, especially as understood within the Sudanese and Libyan contexts.Individuals deemed most responsible for crimes widely regarded as offensive to humanity may face lesser sentences than individuals sentenced at the national level for equally serious or less serious crimes.

From the perspective of those in the target states, and the victims in particular, the dissonance in concurrently operating national and international jurisdictions’ modes of criminal punishment may be seen as corrosive of the legitimacy of prosecutions at both levels and antithetical to the project of post-conflict reconciliation.The death penalty debate which preceded the establishment of the ICTRis instructive on this point.

Perhaps the most implacably divisive issue which arose during talks on the establishment of the ICTRwas that of punishment.  Rwanda’s wish to equip the ICTR with the death penalty,[9] a punishment it was using domestically, was easily overwhelmed by the force of the emergent international human rights regime.  Referring to the Security Council’s decision to establish the ICTR as one of importance to Rwanda but of “even more fundamental importance to the international community as a whole,”[10] Ambassador Keating of New Zealand declared that his country, as a State Party to the Second Optional Protocol to the International Covenant of Civil and Political Rights could not possibly lend its support to a Tribunal empowered to take life.  To do so, Keating explained, would be to take “a dreadful step backwards.”[11]

The only other member of the Security Council to address the matter of the death penalty was the United States, whose representative, Madeleine Albright, held the presidency at the time of the meeting.  President Albright’s reference to the subject was fleeting but clear: while the United States understood a number of Rwanda’s key concerns regarding the establishment of the international tribunal, and it may even have agreed with Rwanda on the subject of the death penalty, to force the issue would have been to shatter the Council’s broad support for the tribunal.[12]

Given the political climate that prevailed in the Security Council at the time, well exampled by New Zealand’s vociferously abolitionist stance to which no serious opposition was raised by any State save Rwanda, internationally imposed capital punishment was manifestly out of the question.

The issue had been broached during the early phases of the ICTY’s construction, where no great controversy had arisen.[13] Given the second ad hoc tribunal’s heavy architectural reliance on the blue-prints of the first,[14] there may have been a widespread feeling that previous debate, or absence thereof, had rendered the issue moot.

Interestingly, all Security Council Members States, excepting the Czech Republic, France, and New Zealand had the death penalty on their books in some form or other when the ICTR was established.[15]

The absence of detailed and sophisticated debate on the issue of the death penalty during the establishment of the two ad hoc tribunals speaks to a significant sea-change in the international community’s view of the punishment.  Just as the Allied Powers had viewed the death penalty as an entirely suitable form of punishment with which to empower the post-World War Two International Military Tribunals and Control Council Courts, such punishment’s unsuitability was, for the most part, taken as read during the deliberative stages of the ad hoc tribunals’ formation.

It is in this strongly abolitionist context that the Security Council referrals must be considered.  In the event that one or both of the referrals lead to the prosecution and conviction of individuals alleged to have committed crimes within the ICC’s jurisdiction, problems of legitimacy will likely arise, and will be largely contingent upon the nature of the legal and political systems to which the people of Sudan and Libya turn once their presidents have left power.

In the event that the post-Gadhafi Libyan administration demonstrates itself willing and able to prosecute individuals the ICC has its eye on, thereby leaping the hurdle of complementarity, there should be no need for ICC intervention, whether or not Libyan courts resort to the death penalty.[16] Alternatively, the ICC could end up prosecuting individuals who would otherwise be permitted to escape justice on account of a heavily compromised Libyan judiciary.  In this scenario, the gap between punishment regimes would have to be appreciated in light of the knowledge that some punishment may be preferable to no punishment at all.

As more and more States ratify and accede to abolitionist treaties the space between the domestic and international regimes of punishment will be reduced.  However, given that none of the ICC’s six situation states have abolished the death penalty,[17] the problem is likely to persist for some time, and to be especially significant in situations involving non-States Parties who are subject to ICC jurisdiction by virtue of a Security Council referral.

Balancing the interests of affected States against those of the international community is a difficult task, necessary to the effective operation of international criminal law.  The Sudan and Libya referrals may result in concurrently operating criminal penalty regimes which are damagingly inconsistent, and viewed as exceptionally senseless by those most directly affected by the crimes.  However, it may be hoped that the damage of this inconsistency will be mitigated by a recognition of the persuasively abolitionist effect the ICC’s decision to limit punishment for the most serious crimes of concern to all of humanity might have on retentionist states.

[2]S/RES/1970 (2011).Signalling President Gadhafi’s waning support, Ibrahim Dabbashi, Libya’s Deputy Envoy to the UN, expressed vigorous support for the Resolution, calling the Tripoli regime fascist. (C/10187/Rev.1**).

[3] S/RES/1593 (2005)

[4] The value of this assertion in relation to the Libyan situation is debatable and, for lack of space, cannot be addressed here.

[5] Both states opposed the December 2010 UN General Assembly Resolution on the Moratorium on the Use of the Death Penalty.  Indeed, none of the ICC’s ‘situation’ states voted in favour of the Moratorium, Uganda voting against it, and DRC, CAR, and Kenya abstaining.

(see: http://www.un.org/News/Press/docs//2010/ga11041.doc.htm).

[6]Rome Statute, Art 77(1).

[7]Ibid, Art 106(1).

[8]Ibid, Preamble, paras.4,9, and at Arts.I, 5(1).

[9] Find Ambassador Bakuramutsa’s comments at: UN Doc S/PV/3453 (http://www.undemocracy.com/securitycouncil/meeting_3453)

[10]Ibid.

[11]Ibid.

[12]Ibid.

[13]The Report of the Secretary-General proposal that “the International Tribunal should not be empowered to impose the death penalty” (UN Doc S/25704 at para 112) was accepted unanimously by the Security Council.

[14]Payam Akhavan, “The Politics and Pragmatism of Punishment,” (1996) 90 American Journal of International Law, 501, at 501.

[15] (http://www.amnesty.org/en/death-penalty/abolitionist-and-retentionist-countries).

[16]The drafters of the Rome Statute took great pains to ensure that the Statute would operate without prejudice to the application of national penalties and laws. Though Libya is not a State Party, Article 80 of the Rome Statute, would still appear to apply.

[17]Kenya is abolitionist in practice, but retains the punishment on its books (http://www.amnesty.org/en/death-penalty/numbers).

No, an example of the proper response can be seen in Britain today, where an inquiry into the decisions leading up to the Iraq war, headed by Sir John Chilcot, has been underway since July. As the inquiry’s website makes clear, this is not a criminal tribunal, and it is not placing anyone on trial. Rather its purpose is to accurately establish what happened, and to identify lessons that can be learned (though have no fear: if the inquiry finds that mistakes were made, “it will say so”).

Britain’s Iraq inquiry is a nice, typical piece of theatre, with a colourful cast of characters. Those gaining the most attention include Jack Straw, Foreign Minister in 2003; Lord Goldsmith, the former Attorney General; Sir Michael Wood, the Foreign Office’s most senior legal advisor; Wood’s deputy Elizabeth Wilmshurst; as well as good old Tony – and his sidekick Gordon, the soon-to-be-former Prime Minister, will even make an appearance.

The plot is certainly no Lost, but it’s been interesting. In 2002 the UN Security Council passed Resolution 1441, which called on Iraq to comply with weapons inspections. Paragraph 12 is clear that a failure to do so on Iraq’s part would result in the Security Council immediately reconvening to discuss further action. After the resolution was unanimously passed, both the US and UK representatives made it explicitly clear that there was no “hidden trigger” to allow the automatic use of military force in the event of a violation. In the words of the UK representative: “There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion.”

A few months later in 2003, the Bush administration had decided that the British government had decided that military action against Saddam Hussein was necessary. To the extent that they needed justification, the UK government wanted to use Resolution 1441 as the basis for its action. Sir Michael and Ms. Wilmshurst advised Jack Straw that this course of action was illegal. Mr. Straw insists he did not ignore this advice – he merely “did not accept” it. Meanwhile, Lord Goldsmith likewise advised Mr. Blair that the war would be illegal. He later changed his mind based on the legal principle of “I got a letter from Jack Straw” and “American lawyers said it was okay”. Even then however, he warned that although the case for war was “reasonable”, silly old “courts” could disagree. After military leaders and civil servants demanded a yes or no answer, Lord Goldsmith decided military action was legal after all – three days before the invasion commenced. Ms. Wilmshurst resigned in protest, telling her superiors that the invasion was a “crime of aggression.”

Clearly, the above situation is nothing like other examples of leaders who ignored international law and were held to account, such as Slobodan Milosevic or Charles Taylor. For example, Britain’s leaders come from a rich, white country. Nevertheless, there are some kooks out there – such as Lord Bingham, the former Senior Law Lord of the UK – who believe that if international law was breached, then legal redress would be desirable. They couldn’t be more wrong.

International criminal law isn’t like domestic criminal law, except that they both disproportionately affect poor people (or countries). International law has the additional guiding principle that those who break the law need not be charged for their crimes if it would offend the sensibilities of the court to do so. This means that Western-run courts such as the ICC won’t prosecute British or American leaders because it would be undignified to subject such esteemed individuals to the ordeal. Underlying this sentiment is the knowledge that countries like Britain created the ICC, so Western exemption from its remit is implied.

More importantly, there are policy reasons why our (the Western world’s) leaders can’t be subjected to prosecution for violations of international law. Firstly, leaders like Mr. Blair and Mr. Straw have the duty to protect their countries. But to protect us from those who pose a threat to us, our leaders must be free to attack those who don’t. Put another way, our leaders shouldn’t have to worry about being prosecuted every time they make a decision to take action in self defence. That’s the problem with domestic criminal law. You know how if you were about to be attacked by someone on the street you’d be helpless because a crippling fear of prosecution would prevent you from defending yourself? No? Well I’m sorry but the whole argument relies on this logic.

The outcome of Britain’s Iraq inquiry is almost a foregone conclusion. Despite overwhelming evidence, the committee will likely not conclude that there was a decisive breach of international law. Rather, it will find that, although errors were made, British leaders made their difficult decisions in good faith. Such a conclusion is for the best, and should be more than enough justice for the thousands of Iraqis, Americans, and British who have died as a result of the Iraq war. Anything more could risk the dangerous precedent that the West, in addition to creating international criminal law, must be subject to it as well.

Blair and Straw Man

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