International criminal justice has become an integral part of world politics. The Permanent International Criminal Court (ICC), founded in 2002, today consists of 123 member states that cover almost the entire globe. Most national criminal codes have incorporated important elements of international criminal law that criminalize core international crimes (namely genocide, crimes against humanity, and war crimes). Given the peace process and the ongoing conflict in the Middle East, it is difficult to avoid discussions about responsibility for international crimes in situations of mass violence.
Behind this preeminent international criminal justice practice is the idea that individuals should be held criminally accountable for committing atrocities, which is sometimes referred to as the “norm of impunity” (Bower 2019). A key feature of the anti-impunity norm is the idea that all persons, regardless of their power or official role, should be held accountable if they are responsible for the commission of the most important international crime. The image of powerful political and military leaders in the dock – as was the case at the International Military Tribunals in Nuremberg and Tokyo after World War II – certainly dominates the public’s perception of international criminal justice. State officials such as the head of state are traditionally granted immunity from criminal prosecution as an extension of the principle of sovereign equality under international law. This “sovereign immunity” has been increasingly abolished with the development of International Criminal Law (ICL), which has abolished sovereign immunity to protect against prosecution for core international crimes. For example, Article 27 (1) of the Rome Statute of the International Criminal Court states that the Statute “applies equally to all persons regardless of official capacity. In particular, the official capacity as head of state or government “[…] In no case does it exempt a person from criminal liability under this Statute […]. “
However, the prosecution of senior state officials, especially heads of state, remains deeply controversial in practice. For example, when the ICC charged the then President of Sudan, Omar al-Bashir, with war crimes and genocide, this sparked a decades-long crisis between the ICC and African states (Mills, 2012). Sovereignty remains a strong norm, especially for weaker states in the international system (Garcia Iommi, 2020), and in practice the ICC continues to rely on state cooperation in its operations so that leaders and other powerful actors can successfully counter efforts to target them for atrocities To be held accountable (Han, 2019). Such resistance to holding heads of state accountable has been seen as a direct challenge to the legitimacy and strength of the anti-impunity norm (Mills and Bloomfield, 2018; Boehme, 2017; Garcia Iommi, 2020).
But what exactly is the place of sovereign immunity (or its eradication) in the norm of anti-impunity? What significance does it have in the practice of international criminal justice? The following analytical essay will introduce a theoretical framework to conceptualize the relationship between the anti-impunity norm and sovereign immunity. This is based on a previously published article, co-authored with Sophie T. Rosenberg (LSE) on the normative significance of the African Union’s contestation against the ICC, entitled “Claiming Equality: The African Union’s Contestation of the Anti-Impunity Norm “. in the Review of International Studies.
The internal structure of norms
Norms are generally conceptualized in IR theory as a common understanding that defines standards of appropriate behavior – in other words, ideas of what “should” be done (Checkel 1999, Finnemore and Sikkink 1998). While earlier generations of constructivist IR research assumed that the meanings of norms were fixed in their studies of how norms diffuse, institutionalized and ultimately taken for granted by the actors (Finnemore and Sikkink 1998), norms are increasingly challenged Increasingly the focus (e.g. Stimmer and Wisken 2019) led to a broader question as to whether norms can have fixed meanings at all (Niemann and Schillinger 2017). Critical constructivists therefore argued that norms should be understood as being stable at the same time and flexible, as they are socially constructed through the interaction of actors in a given context (Wiener, 2008). In other words, the meaning of a standard is constructed “in-use” (ibid.).
In order to theoretically better grasp this duality of norms as stable and flexible, it is necessary to unpack the inner structure of norms. Winston (2018) suggests a three-part structure of a norm in this sense, which can be expressed in this conditional statement: “Given a problem, my value dictates this behavior”. For example, consider the norm “civilians should not be killed in war”. A simple understanding of norms as dictating what to do would focus only on behavior: we shouldn’t kill civilians. The tripartite structure of the norms (referred to as “norm clusters” by Winston) emphasizes that the dictum “don’t kill civilians” only makes sense as appropriate behavior if we accept that we have certain values (like the sanctity of life) and identify a problem related to those values (like protecting the sanctity of life in war). Winston argues that these individual normative elements of value, problem and behavior can be combined in a variety of ways, as long as the different configurations (the “meaning” emerging from the context) are seen as legitimate by the broader community (Winston, 2018) . The insight here is that there can be multiple values that dictate a single behavior, and conversely, the commitment to a single value claim can lead to different rules of conduct.
Unpacking the anti-impunity norm
Applying Winston’s conceptualization of norms, existing understandings of the anti-impunity norm as “prosecuting individuals for atrocities” actually assume a singular behavior (prosecuting all alleged perpetrators) to a problem (impunity) that is represented by a uniform set of values (universality of human rights). From this perspective, it is very clear that sovereign immunity must be completely lifted. However, when looking at the principles of the ICL outlined in the laws and judgments of international criminal courts and their practices, the internal structure of the anti-impunity norm is far more complex. In particular, the idea that individuals should be made criminally responsible for atrocities is underpinned by different values that generate different codes of conduct.
Value (s) of the anti-impunity norm
There are three distinct, albeit intertwined, values that are at the heart of the anti-impunity norm we see in practice today. The first can be expressed as Principle of individual legal equality, or the idea that individuals have equal rights and obligations before the law as enshrined in international human rights (Nouwen, 2012). From this perspective, impunity becomes a problem as it implies that some people are not afforded the same level of protection under international law while others can evade their responsibilities.
The second value proposition is that Principle of the sovereign equality of states. While ICL was understood as strengthening the principle of individual equality at the expense of sovereign equality (Teitel, 2011), in practice international criminal justice is the result of an ambiguous compromise between individual and sovereign equality. The ICC jurisdiction does not automatically apply to all individuals, as would be expected if we were to prioritize the value of individual equality, but only to members conditions who have approved the statutes. The Court of Justice is also set up as a “court of last instance” through the principle of complementarity, which provides that it can only intervene if a state cannot or does not want to prosecute, or at the invitation of the state itself (Gissel, 2018). . This privileged position of states in the architecture of the ICC (Han, 2019) underscores how individual equality is pursued within broader principles of sovereign equality rather than replacing them.
The third and final value claim is that Principle of equality of accountability, or the value attached to the impartial application of the anti-impunity rule. A legitimate legal system, including that of international criminal justice, is one in which justice is balanced regardless of political or social power (Cryer, 2005). Impunity is an issue of the principle of equal accountability in two ways. First, it may suggest that individuals are being held accountable selectively, especially when those with less power are held accountable on a more regular basis. Second, it may indicate that atrocities committed within and by powerful states will not be held accountable for their actions. The ICC negotiating history suggests that this second aspect of equality of accountability was particularly important for weaker states in the international system, whose striving for anti-impunity aimed to solve the problem of the impunity of powerful state actors (Gissel, 2018). .
Three principles of equality and sovereign immunity
The rule of conduct to waive immunity to states must therefore be assessed in the light of these three principles of equality: between individuals, between sovereigns, and with a view to the general application of the ICL. A version of the anti-impunity norm that prioritizes individual equality over all other values, for example, may dictate that sovereign immunity must be completely removed from practice. There is a logical reason to argue for this version of the anti-impunity norm – as Mills and Bloomfield argue, since it is often state officials who plan and order atrocities, it would make nonsense to prevent their prosecution (2018). A similar conclusion would be reached if we gave priority to ensuring equality of accountability between individuals. The ability to prosecute politically powerful people would help us to live up to the value of equal justice in this sense.
But in a version of the anti-impunity norm that emphasizes the value of sovereign equality, sovereign immunity can stand alongside an international anti-impunity norm without necessarily being a contradiction in terms. For example, some legal commentators have argued that respect for sovereign immunity remains imperative in the case of arrest warrants against civil servants from non-ICC states (Gaeta and Labuda, 2017; Nouwen, 2012).
Furthermore, a version of the anti-impunity norm that prioritizes equality of accountability between states cannot prioritize what type of person will be held accountable to the country in which they are represented or operate. In other words, focusing on prosecuting individuals from powerful states might normatively be preferable to focusing on powerful actors in historically weaker or marginalized states. The question of whether or not sovereign immunity is preserved is made a little less urgent with this version of the anti-criminality norm.
Conclusion and implications
Where does the conceptualization of the anti-impunity norm as a composite structure with different value claims (expressed in terms of the above three principles of equality), problem (impunity), and behavior (including, but not limited to, waiver of sovereign immunity) get us? In theory, conceptualizing the anti-impunity norm in this way helps us think about a plural future of the norm. The black boxing of the internal structure of the norm, in particular of the different values that intersect at its core, makes us think about the contestation of certain rules of conduct in terms that are too dichotomous. Assuming that the anti-impunity norm has a singular, fixed meaning, for example, some scholars have viewed the challenge to prosecution of heads of state (and thus the protection of sovereign immunity) as something fundamentally damaging the anti-impunity norm (Mills and Bloomfield, 2018) or instead strengthens other, competing norms (Boehme, 2017), which leads to a weakening of the norm or even to the death of the norm (Panke and Petersohn, 2012; Kutz, 2014). But if we take seriously the idea that norms are stable and flexible at the same time, are “self-evident” and yet “essentially controversial”, we can better systematically decipher the various “endings” of the norm contestation (Stimmer, 2019).
This is not just a theoretical exercise. A more differentiated and precise understanding of the internal structure of the anti-impunity norm, as presented in the “Framework for Equality Claims” in this article, can help us to better assess the normative appropriateness of real developments. Despite persistent crisis and erosion rhetoric (Vasilev, 2019), the ICC as an institution will not close in the foreseeable future. Neither is the general practice of international criminal justice. Rather, we are seeing changes in the way impunity is dealt with, whose crimes are prioritized, and what types of perpetrators are targeted. Deviating from the (only) question of whether the “big fish” are caught, participants in international criminal justice ask themselves what kind of justice is possible to support which value claims (Drumbl, 2019). Is impunity a problem because it primarily violates individual legal equality? Or is this particular case of impunity more egregious because it involves a more powerful actor who violates the principle of equality of accountability? The framework of “equality claims” provides us with a way to evaluate and understand these competing versions of justice – many of which remain politically, normatively, and emotionally compelling in real-life politics (Clarke, 2019).
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