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Crime and Punishment: Holding States Accountable

Published online by Cambridge University Press:  25 March 2011

Anthony F. Lang Jr.
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Abstract

Should states be held responsible and punished for violations of international law? The recent ruling by the International Court of Justice that Serbia cannot be held responsible for genocide in Bosnia reflects the predominant international legal position. But such a position leaves open the possibility that states or nonstate agents can never be held responsible for international crimes. This article argues that they can and should be. While most international ethicists and legal theorists reject the punishment of corporate entities such as states, this article argues that certain types of international violations can only be undertaken by states, and, as a result, states must bear the responsibility for them. Drawing on some neglected strands in international law and political theory, the article sketches a potential institutional framework for the punishment of state crimes, particularly genocide and aggression.

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Features
Information
Ethics & International Affairs , Volume 21 , Issue 2 , Summer 2007 , pp. 239 - 257
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2007

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References

Notes

1 International Military Tribunal for the Trial of the Major War Criminals, judgment of October 1, 1946; reprinted in American Journal of International Law 41 (1947), p. 221.

2 See M. Cherif Bassiouni, Introduction to International Criminal Law (Ardsley, N.Y.: Transnational Publishers, 2003), for an overview of this regime.

3 Nina H. B. Jorgensen, The Responsibility of States for International Crimes (Oxford: Oxford University Press, 2005), pp. 3–27.

4 Ian Brownlie, “State Responsibility and the International Court of Justice,” in Malgosia Fitzmaurice and Dan Sarooshi, eds., Issues of State Responsibility before International Judicial Institutions (Oxford: Hart Publishing, 2004), p. 12.

5 The International Law Commission was created in 1948 as part of the United Nations system to help develop and codify international law. It works through committees that develop draft articles on a range of international legal topics, which are then proposed to UN member states for use as draft treaties; see their website at http:\\www.un.org/law/ilc/.

6 James Crawford, “Introduction,” in James Crawford, ed., The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentary (Cambridge: Cambridge University Press, 2001), p. 1.

7 Ibid., p. 3.

8 Ibid., pp. 352–53.

9 State Responsibility: Comments and Observations Received from Governments, UN Doc. A/CN.4/488, March 25, 1998, p. 53; available at http:\\ods-dds-ny.un.org/doc/UNDOC/GEN/N98/099/53/PDF/N9809953.pdf?OpenElement; accessed on March 8, 2004.

10 Ibid.

11 Ibid., pp. 58–59.

12 Ibid., p. 61.

13 James Crawford, First Report on State Responsibility, Addendum, UN Doc. A/CN.4/490/Add.3, May 11, 1998, p. 7; available at http:\\ods-dds-ny.un.org/doc/UNDOC/GEN/N98/128/60/PDF/N9812860.pdf?OpenElement; accessed on March 8, 2004.

14 Crawford, “Introduction,” in The International Law Commission's Articles on State Responsibility, pp. 18–19.

15 Crawford, First Report, p. 10.

16 “State Responsibility: Articles and Commentary,” art. 40, paras. 1–9, in The International Law Commission's Articles on State Responsibility, pp. 245–48.

17 For various writings on these issues, see John Martin Fischer, ed., Moral Responsibility (Ithaca, N.Y.: Cornell University Press, 1986); and John Martin Fischer and Mark Ravizza, eds., Perspectives on Moral Responsibility (Ithaca, N.Y.: Cornell University Press, 1993).

18 See Larry May and Stacey Hoffman, eds., Collective Responsibility: Five Decades of Debate in Theoretical and Applied Ethics (Savage, Md.: Rowman & Littlefield, 1991).

19 For a recent attempt to explore the concept of national responsibility, see David Miller, “Holding Nations Responsible,” Ethics 114 (January 2004), pp. 240–68.

20 Miller explores the future-oriented nature of responsibility in “Distributing Responsibilities,” Journal of Political Philosophy 9, no. 4 (2001), pp. 453–71.

21 Peter Strawson, “Freedom and Resentment,” in Fischer and Ravizza, eds., Perspectives on Moral Responsibility, pp. 45–66; reprinted from Proceedings of the British Academy 48 (1962), pp. 1–25.

22 The continental legal tradition does not see corporate entities as agents in law as much as the Anglo-American tradition does; see Bassiouni, Introduction to International Criminal Law, pp. 59–60, for a brief discussion of this point.

23 Patrick Thaddeus Jackson, et al., “Forum: Is the State a Person? Why Should We Care?” Review of International Studies 30, no. 2 (2004), pp. 255–316.

24 This section is drawn from Michael Jefferson, Criminal Law (London: Pitman, 1992), an introductory textbook on English and Welsh criminal law. While there are important differences between English, Scottish, and American conceptions of criminal law, they all share the attributes I highlight.

25 For a description of that evolution in the pages of one influential academic journal, see David J. Bederman, “Appraising a Century of Scholarship in the American Journal of International Law,” American Journal of International Law 100, no. 1 (January 2006), pp. 20–64.

26 For a discussion of how a political process can produce intentional actions, see Frances Harbour, “Collective Moral Agency and the Political Process,” in Toni Erskine, ed., Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (Houndsmill, UK: Palgrave Macmillan, 2003), pp. 69–83.

27 See Jan Klabbers, “Just Revenge? The Deterrence Argument in International Criminal Law,” Finnish Yearbook of International Law 12 (2001), pp. 249–67.

28 See Fitzmaurice and Sarooshi, eds., Issues of State Responsibility.

29 Crawford, “Introduction,” in The International Law Commission's Articles on State Responsibility, p. 20.

30 A. John Simmons, “Introduction,” in A. John Simmons, ed., Punishment: A Philosophy and Public Affairs Reader (Princeton: Princeton University Press, 1995), p. vii.

31 Rehabilitation has also been offered as a justification for punishment, but only as a secondary matter; the goal of inflicting harm is either to deter violations or enact retribution.

32 James Rachels, “Punishment and Desert,” in Hugh LaFollette, ed., Ethics in Practice: An Anthology, 2nd ed. (Oxford: Blackwell Publishers, 2002), p. 468.

33 For a more extensive discussion of the relationship of justice to punishment, see Matt Matravers, Justice and Punishment: The Rationale of Coercion (Oxford: Oxford University Press, 2000).

34 Jeffrie Murphy has made this point in various places; see, for example, “Marxism and Retribution,” in Simmons, ed., Punishment, pp. 3–29.

35 See Alan Goldman, “The Paradox of Punishment,” in Simmons, ed., Punishment, pp. 30–46, for one attempt to address the problem of excessive punishment.

36 See Simmons, “Introduction,” in Simmons, ed., Punishment, p. viii.

37 John Rawls, “Two Concepts of Rules,” in H. B. Acton, ed., The Philosophy of Punishment: A Collection of Papers (New York: Macmillian, 1969 [1954]), p. 108.

38 See Anthony F. Lang, Jr., Punishment, Justice and International Relations (London: Routledge, forthcoming, 2008).

39 John Locke and Hugo Grotius explore how punishment need not arise from an authority, but might be undertaken by individuals in a state of nature.

40 See the website of the ICJ, where its basic structure is described in more depth: http:\\www.icj-cij.org/icjwww/icjhome.htm.

41 There is a debate about whether the court simply makes declaratory judgments or actually imposes sanctions. Some believe the court is moving closer to imposing sanctions; see Malcolm Shaw, “The International Court, Responsibility and Remedies,” in Fitzmaurice and Sarooshi, eds., Issues of State Responsibility, pp. 19–34.

42 David Malone has recently argued that the Security Council shifted from a politico-military role to a legal-regulative role, particularly in its decisions concerning Iraq during the 1990s, which resulted in the creation of a wide range of bodies that were designed to regulate Iraqi behavior; David M. Malone, The International Struggle over Iraq: Politics in the UN Security Council, 1980–2005 (Oxford: Oxford University Press, 2006).

43 For an insightful discussion of constitutional legitimacy, see Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005).

44 See Bassiouni, Introduction to International Criminal Law, p. 136; and William A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2003), pp. 26–29.

45 Hans Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1946), p. 19.

46 Ibid., p. 106.

47 Hans Kelsen, Peace through Law (Chapel Hill, N.C.: University of North Carolina Press, 1944).

48 See the appendix to Peace through Law, pp. 127–40, which lays out a proposed treaty for the creation of a new international institution, the central aspect of which is the judiciary.

49 For one of the leading theorists, see Thomas Schelling, The Strategy of Conflict (Oxford: Oxford University Press, 1963); and Thomas Schelling, Arms and Influence (New Haven: Yale University Press, 1966).

50 Daniel Byman and Matthew Waxman, The Dynamics of Coercion: American Foreign Policy and the Limits of Military Might (Cambridge: Cambridge University Press, 2002), p. 48.

51 I am indebted to Christian Barry for suggesting this further level of responsibility.

52 For some of the complications of using this strategy in the current international system, see Anthony F. Lang, Jr., “Punitive Justifications or Just Punishment? An Ethical Reading of Coercive Diplomacy,” Cambridge Review of International Affairs 19, no. 3 (2006), pp. 389–403.

53 For the classic study of how a bureaucracy is necessary to commit genocide, see Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. and enl. ed. (New York: Penguin Books, 1964).

54 Schabas, Introduction to the International Criminal Court, p. 32.

55 Jens Meierhenrich, “The Ethics of Lustration,” Ethics & International Affairs 20, no. 1 (2006), pp. 99–120.