Law, War and Crime in the United States

Gerry Simpson
(Polity Press, Cambridge, 2007, ix + 225 pp)
Law, War and Crime is a history of international criminal law. The field is a young one and its tensions, ironies and incoherencies, illuminated in the first five chapters of Gerry Simpson’s book, are many; can, and how does, international criminal law transcend the charge of ‘victor’s justice?’ To what extent does international criminal law’s selectivity discredit its claims to universality and impartiality? Are war crimes trials fatally flawed by their inevitable politicization? What is the proper ‘place’ of the war crimes trial: within the state or above it? How well does the international criminal trial function as a vessel of historical truth, as a forum for dissenting narratives, as a means of redress for victims? Can we really individualize war and ascribe criminal intent to men who do no more or less than fight on the losing side of a battle between states? Chapters 6 and 7 of Law, War and Crime stand somewhat apart from the preceding ones; in Chapter 6, Simpson investigates the insertion of law into international politics, the ‘way political events are given juridical form.’ Then, in somewhat ahistorical fashion, Simpson discusses ‘Law’s Origins;’ we are given ‘the Pirate’, predecessor to the modern terrorist, without allegiance to any state and the enemy of all states.

Laying bare the uncertainty of international criminal law’s horizon is a worthwhile endeavour. If one of the author’s aims in Law, War and Crime is to dampen any unrestrained moral enthusiasm we may have had for the cosmopolitan project of international law (p 2), then he succeeds. Complacencies (that international criminal law might be above politics, that the apparatus and techniques of domestic law can be easily applied to crimes against humanity), are unseated. Simpson’s principal argument is that ‘the politics of war crimes trials can be thought of as a set of relationships: between the cosmopolitan and the local; between the collective and the individual; between the didactic and the juridical; between show trials and legitimate proceedings; between law in war and law of war; and between legal sanction and extra-legal action’ (p 29). At the end of Chapter 4, ‘Law’s Place,’ Simpson writes that ‘the modalities of international justice involve a perpetual negotiation between the claims of the cosmopolitan and the needs of the local, the former constantly threatening to collapse into hegemony, the latter into parochialism. As this chapter has argued, this negotiation is the very stuff of international criminal law’ (p 53).

But Law, War and Crime is far from being a destructive critique of international criminal law; its principal strength is its function of empowering us to shift our understanding of the field. For example, judges of the International Criminal Court have recently authorised the issue of an arrest warrant for President Omar al-Bashir of Sudan, the first issued by the International Criminal Court for a sitting head of state. Arguments such as those pursued by Simpson, that ‘war crimes trials are best understood as a form of legalistic politics,’ (page 24), have resonance. The Security Council’s referral of Darfur to the ICC in March 2005 was a political action, but hardly one that deferred unambiguously to ‘Great Power
preferences’ (p11); the United States’ abstention from the Security Council vote was indication of the ambivalent attitude of at least one of the Great Powers to prosecution of States that are not party to the Rome Statute.1 Nor was Security Council Resolution 1593 reflective of ‘institutional and doctrinal tools working against those preferences’ (p 11); Article Six of the Resolution preserved the imperviousness of states not party to the Rome Treaty, such as the United States. The indictment of al-Bashir, a sitting head of state, has been met with accusations that the international community was using international law to pursue regime change by judicial means (Simpson’s ‘legalistic politics’). Other commentators deplored the harm the prosecution was doing to the African Union’s efforts to reach a peaceful resolution of the Darfur crisis (Simpson’s ‘Utopian Politics’). The ICC prosecutor, Moreno-Ocampo, maintained that the impact of the indictment on the Comprehensive Peace Agreement or the Sudanese government’s eviction of aid workers, was not any part of the prosecutor’s deliberations; ‘our job is basically judicial’ (Simpson’s ‘transcendental legalism.’) As the ICC moved to try yet another defendant from an African state, we are reminded of Simpson’s arguments about ‘deformed legalism;’ it indeed appeared that ‘international criminal law, from the perspective of the industrialized North, appears to be what other states breach’ (p 17).

The bulk of Law, War and Crime, then, provokes a certain mode of thinking about international criminal law; a recognition of its ‘insufficiency and incompletion, always necessarily attuned to what could be.’2 In the face of this achievement, my quibbles with the book are minor; such as its Eurocentric focus that paints a trajectory from Nuremberg to The Hague, with little more than a nod to Justice Pal’s dissent at Tokyo as evidence that the rest of the world has thought much about war and law. A slightly larger quibble is with the final chapter of Law, War and Crime, ‘Law’s Fate’. The chapter is only one and a half pages long and is more perplexing than its preceding chapters. In it, the author concludes that ‘[l]aw and crime are now central to our understandings of how war should be judged. And we understand, too, that war must be judged, and that we are capable of judgment. This is the modernist project of law made global.’ If we are uneasy with judging war, it is because of an ‘ancient sense that we are at the same time incapable of judgment: that judgment is still to come’ (p 178). The author concludes the book with a reference to Steiner’s contrast of Old Testament wars with the Peloponnesian Wars, wars in which men, driven by ‘obscure fatalities and misjudgements … go out to destroy one another in a kind of fury without hatred’ (p 179).

Simpson’s reference to the Peloponnesian Wars and the wars of the Old Testament is no mere rhetorical flourish. At the end of Chapter 5, ‘Law’s Anxieties: Show Trials’ the author concludes that ‘the war crimes field, then, is founded on a schism between Judaic judgment and Greek fatalism. In the Judaic
version of the action / accountability axis, men are punished for a moral failure of some sort; they do wrong and are condemned before the tribunals of man or by a reasoning God. In the Greek version, men are at the mercy of gods; they are unanchored to any rational universe. The continuity between thought and action dissipates to be replaced by ‘an ironic abyss’ (p 131). At the end of the book we are asked: ‘What sort of wars are we now waging? And how should we respond to them? With law? Or with fatalism and irony?’ It is clear that in the author’s view, the answer should be law.
The positing of international criminal law as ‘founded on a schism between Judaic judgment and Greek fatalism’ (p 131) underpins Simpson’s attempt to achieve the second major project of Law, War and Crime; to convince the reader that, despite the author’s vigorous and conscientious unearthing of the play of power and politics in international criminal law, ‘universal justice’ is a worthy and (ultimately) attainable goal; ‘it seems unarguable that justice ought to be done and that war crimes law has done much to achieve that end’ (p 9). We are encouraged to agree with the author, because he casts the dilemma of international criminal law as being between ‘reason and justice’ or ‘arbitrary death and pointless destruction overseen by capricious gods’ (p 131). Naturally, we prefer reason and justice. By framing the debate thus, Simpson has replaced the familiar juxtaposition of international law, that it is ‘a manipulable façade for power politics,’ (too apologetic to be taken seriously in the construction of international order) or that ‘its moralistic character hopelessly distances it from the realities of power politics,’ (too utopian to be taken seriously) (Koskenniemi),3 with his own defining juxtaposition of the field.

But words are not used carelessly in Law, War and Crime. ‘Tragedy’ resurfaces again and again as the dark undertow to the acutely observed oscillations between the individual and the collective, the state and international society, legalism and show trial. Earlier in the book, in a chapter dealing with ‘Law’s Subjects’ (an exegesis on individual accountability for structural evil, whether and how states commit crimes and the consequences of holding states accountable), the author makes a rather large claim: ‘and I show, too, how implicated in all this is the relationship between individual evil, structural deformity and the tragedy of being human’ (p 59). My concern with Simpson’s characterisation is that whether one’s tastes run to Greek tragedy or to the theatre of retributive justice is less a matter of logic and reason than of one’s appetite for a particular Weltanschauung. It is questionable whether we are offered, in the end, any more than the author’s personal conviction that the law, despite its vagaries, limitations and hypocrisies, is a fitting response to war.

1 China also abstained, as did Algeria and Brazil.
2 B Golder, ‘Foucault and the Incompletion of Law’ (2008) 21 Leiden Journal of International Law 747, 761.
3 M Koskenniemi, ‘The Politics of International Law’ (1990) 1 European Journal of International Law 4.

Main source: Catherine Renshaw
RESEARCH FELLOW,
FACULTY OF LAW, UNIVERSITY OF NEW SOUTH WALES