Short review

Law, War & Crime: War Crimes, Trials and the Reinvention of International Law. By Gerry Simpson. Cambridge: Polity Press, 2007. Pp. 225. $24.95.

Reviewed by Sébastien Jodoin, Legal Research Fellow, Centre for International Sustainable Development Law.

 

The field of international criminal law has a long and storied tradition of dissent within and outside of the courtroom. From Justice Pal in Tokyo, Arendt in Jerusalem, and Milosevic in The Hague, dissenters, critics and opponents have raised a number of difficult questions about the legitimacy, the fairness and the politics of international criminal justice.[1]

 

Gerry Simpson’s Law, War & Crime (as well as his scholarship as a whole on international criminal law) is part of this tradition of dissent. That is not to say that Simpson’s project is primarily characterized by a resistance to or a critique of international criminal law. Rather, his aim is to problematize the tensions which make up the underlying structures of international criminal law, tensions between law and politics, the local and the international, the individual and the collective, justice and history, and violence and legality. Simpson examines how these different themes have recurred throughout the history of the field in statements made by critics and supporters, in pleadings and judgments in criminal proceedings, and in the political and diplomatic debates surrounding the creation and use of international criminal law.

 

Simpson’s fundamental argument is that the mainstream of the field of international criminal law has too often ignored, been blind to or complacent about the way in which it is constituted by these different relationships and how they produce a form of displaced politics, i.e. politics by other means or in another form. These politics amount to what Simpson calls juridified diplomacy: “the phenomenon by which conflict about the purpose and shape of international political life (as well as specific disputes in this realm) is translated into legal doctrine or resolved in legal institutions” (p. 1).

 

Chapter 1 focuses on the relationship that lies at the centre of international criminal law’s self-image, that between law and politics. Simpson lays out four self-images: deformed legalism (international criminal law as a corrupt legal mechanism), transcendent legalism (international criminal law as overcoming politics), utopian politics (a realist critique of international criminal law) and legalistic politics (international criminal law as politics by other means with useful or harmful functions and purposes). In particular, Simpson recounts the role that the law/politics divide played in the negotiations of the Rome Statute regarding most notably the differing roles of state consent, the Prosecutor’s office and the Security Council in the structure and functioning of the Court.

 

Chapter 2 examines two dialectics that animate the discipline of international criminal law: one relating to the place of justice, opposing the national to the international, and another relating to the style of justice, opposing provincialism to cosmopolitanism. Simpson considers how the field has sought to grapple with and accommodate both the hopes for cosmopolitan justice and universalism and the requirements of sovereignty and particularity, especially at each period of institutional reform and during the establishment and evolution of war crimes trials. Simpson ultimately concludes that international criminal law is fundamentally characterized by hybridity, in the way that it has moved between the international (e.g., the Nuremberg Tribunal and the ad hoc tribunals) and the local (e.g., the Eichmann Trial and the Bosnian War Crimes Chamber) and has institutionalized this very tension (e.g., the complementarity principle in the Rome Statute or the creation of hybrid tribunals).

 

Chapter 3 considers international criminal law’s approach to the questions of responsibility and accountability. Simpson argues that international criminal law has been marked by transitions between a focus on the criminal responsibility of the individual deviant with a view of cleansing the state of guilt and rehabilitating it (e.g., the Nuremberg Tribunal and the ad hoc tribunals) and a focus on the collective responsibility of rogue or criminal states (e.g., sanctions against Iraq after the Gulf War and the Genocide case at the International Court of Justice). In writing about the latter, Simpson has taken the novel position of expanding the scope of international criminal law to encompass what he characterizes as forms of “state criminalization.” Even when international criminal law has ostensibly adopted the norm of individual criminal responsibility, Simpson avers that it has nonetheless been animated by another related dilemma. On the one hand criminal responsibility is incurred by an individual criminal on the other hand international criminal law focuses on the structures of criminality, as reflected in the role played by modes of liability relating to conspiracy, criminal enterprises and criminal organizations. These tensions ultimately relate to deeper debates about the moral responsibility of individuals and groups for mass crimes and the very nature of agency and evil.

 

Chapter 4 discusses international criminal law’s ability to deliver justice and to be pedagogic at the same time. International criminal trials have often been defended for their didactic purposes, through which they can establish an impartial account of history and produce truths about the virtues of law and the dangers involved in certain types of politics. Simpson discusses however whether international criminal trials have gone beyond the limits of law in their pursuit of memory and truth and whether this pursuit is compatible with procedural justice. This was most notably an issue in the Eichmann trial wherein the Prosecutor’s project of documenting the history of the holocaust clashed with the Presiding Judge’s concern for focusing on the criminal charges laid against Eichmann. Simpson also discusses how international criminal law’s didacticism serves to legitimate particular political projects, how it can be undermined by dissenting narratives (e.g., Justice Pal’s dissent in the Tokyo trial or Milosevic’s behavior during his trial at the ICTY) and how it can be deployed both for the purposes of remembering and forgetting – the Barbie trial, for instance, was as much about remembering Barbie’s crimes as it was about forgetting France’s collaborationist and colonial history.

 

Chapter 5 considers one of international criminal law’s greatest anxieties, the disintegration of its liberal judicial idealism into a purported antithesis of the politics of show trials. Simpson emphasizes however the fluid boundaries and the striking parallels between show trials and war crimes trials: their retroactivity, their ad hoc nature, their selectivity and their use of over-inclusive modes of responsibility. Simpson also discusses how both types of trials can lead to the criminalization of political actions and ideas, the transformation of political errors committed by individuals on the wrong side of history. In their attempts to instrumentalize justice for other means, Simpson points out that show trials and international criminal trials share a number of other features: their emphasis on pre-emption and prevention of future crimes, their use of individuals for the pursuit of large-scale political projects, and their appeal to fundamental values.

 

Chapter 6 examines the effects and claims of juridified diplomacy. Simpson first considers the ambiguous impact of the revival of international criminal law on the international legal system. On the one hand, this revival has the potential to save international law from its irrelevance as a legal system with weak enforcement mechanisms. On the other hand, the enthusiasm generated by this revival undercuts the notion that international law was already a complete form of law despite the weakness of its compliance mechanisms. Simpson then discusses the hopes pinned on the juridification of politics through international criminal law and its failure to depoliticise issues involving significant political differences and relating to the high politics of international relations, such as the decision to use force. Finally, Simpson examines the fundamental opposition between ideas seeking to juridify war, reflecting law’s hegemonic tendency to regulate everything, and ideas seeking to limit law, the denial of the applicability of criminal categories to war by political realists interested in maintaining sovereignty and legalists interested in maintaining law’s autonomy. These different projects are examined in the context of the controversy over the crime of aggression.

 

Chapter 7 focuses on two figures, the mythical pirate and the modern terrorist, the way in which they lie outside of law as constructed enemies of mankind, the wars that are led against them and the politics through which responses to them are unconstrained by law. Simpson discusses the nature of the crime of piracy and how it lies at the foundations of international criminal law as well as the nature of the war on terror and how it has informed modern international law. He argues that categories of identity and morality such as pirates and terrorists are as much about stigmatizing outsiders and enemies as they are about reinforcing the solidarity and common identity of insiders and allies. As such, the ambiguities implied in these categories raise “difficult questions” about the nature of international legal personality and international law on the use of force.

 

Law, War & Crime is a significant contribution to the study of international criminal law. It ably brings together different strands of critique and questioning, drawing on a variety of sources, disciplines and voices: moral philosophers, legal scholars, international lawyers, political discourse and criminal proceedings. Beyond this, it is also an intellectual and institutional history of the field, one that questions the conventional narrative of international criminal law’s journey from politics to justice, from Nuremberg to The Hague. The book’s virtue lies in the way in which it assails the theoretical complacency of the discipline of international criminal law and reveals the richness, complexity and diversity of the intellectual commitments and political projects that animate it.

 

To its credit, Simpson’s book has taken a broad approach to defining the field of international criminal law, including within its ambit not just international criminal trials, but other phenomena such as sanctions regimes and proceedings relating to the law of state responsibility. This approach makes the absence of other responses to international crimes all the more glaring however. Indeed, as acknowledged by Simpson himself, this book does not address issues raised by mechanisms of civil responsibility and transitional justice. Their absence is particularly disappointing, given that these are alternatives or complements to conventional modes of international criminal law and are thus vital to the field’s self-image and political commitments, especially in a modern context. The book would also have benefited from a discussion of the relationships between criminal justice and social justice, peace and justice and development/reconstruction and justice. One final minor weakness is the lack of a conclusion – although the chapters are fairly self-standing, the different dialectics and dichotomies which they discuss map onto each other in interesting ways and how they are configured within particular institutions is ultimately what international criminal law is all about.

 

Of course, criticisms of non-exhaustiveness are probably unfair given the ground-breaking nature of Simpson’s book. It is the first serious full-length appraisal of international criminal law from a critical perspective, one that has the benefit of not merely reiterating the field’s traditional arguments and debates regarding the struggle against impunity and lawlessness. As such, it will probably appeal first and foremost to readers interested in international legal theory and in critical approaches to law. However, one of the implicit lessons of this book is that the field of international criminal law has too often refused or failed to engage in self-reflection and self-critique and academics and practitioners within the field would thus be well advised to remedy this lack of self-awareness by absorbing this book’s many insights. To be sure, Simpson’s book strikes a discordant note amidst the collective enthusiasm surrounding the enterprise of international criminal justice, but his book nonetheless takes this enterprise, its achievements, its values and indeed the enthusiasm that it inspires very seriously.

 

 

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