Papers by Frederic J M S Megret
The evolving relationship between international human rights law and criminal law is marked by ... more The evolving relationship between international human rights law and criminal law is marked by a passage from a role of moderation to one of legitimization. While international human rights law was previously critical of criminal law as an instrument of state repression, the last few decades witnessed a shift towards a victim-centred conception of criminal law as a means to protect and enforce certain human rights. This contrasts with a liberal conception of human rights as a check on the power of the state through the use of its criminal law authority. This development manifests itself through what may be dubbed the “criminalization” of Inter-American human rights law. This chapter explores this phenomenon of “criminalization” and its various illustrations, particularly through the Inter-
American Court of Human Rights’ discourse with respect to amnesty laws and prescription.
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Wouter Werner, Marieke de Hoon, and Alexis Galán Ávila (eds), The Law of International Lawyers (2015).
This chapter seeks to "sociologize" Martti Koskenniemi's "From Apology to Utopia" to understand i... more This chapter seeks to "sociologize" Martti Koskenniemi's "From Apology to Utopia" to understand it less as a theoretical critique of law's indeterminacy and more as a description of the "common sense" of international lawyers, constantly called upon to navigate apology and utopia. It does so by invoking Bourdieusian "field analysis" and looking in particular at the laws of war as a semi-autonomous field of socio-legal practice within international law. The chapter looks at the emergence of that field at the intersection of law, humanitarianism and military necessity, and explores how the field both constrains and makes possible various argumentative strategies within it that make the most of the tension between apology and utopia. It seeks to examine the "navigation" of the field from the point of view of individual participants within it seeking to maximize their relative position as part of ongoing struggles for domination but who can ultimately never do so in a way that would undermine the field's claim to relevance. In the conclusion some of the implications are drawn both for our understanding of the "social determinacy" of international law underscored by the resilience of the field, and the inevitable normative circularity and conservatism of the project of the laws of war.
Published in Wouter Werner, Marieke de Hoon, and Alexis Galán Ávila (eds), The Law of International Lawyers (2015).
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Ce chapitre fait suive au lancement en 2014 du réseau Olympe sur les approches féministes du dro... more Ce chapitre fait suive au lancement en 2014 du réseau Olympe sur les approches féministes du droit international et doit paraître dans un ouvrage collectif sur le féminisme et le droit international. Le chapitre tente de dresser un portrait de la sensibilité que l'on pourrait qualifier de "féministe critique" ou "féministe révisionniste" en droit international, laquelle existe principalement en langue anglaise. Il prend pour point de départ l'ambivalence de certaines féministes par rapport au "succès" de la cause des femmes en droit international et souligne plus particulièrement trois grands dangers contre lesquels le féminisme critique met en garde.
La peur est tout d'abord qu'à force d'investissement dans les outils du droit international, les activistes des droits des femmes en viennent à oublier le potentiel critique de la pensée féministe, se condamnant ainsi à une reproduction des catégories. Elle est ensuite que le féminisme libéral passe à côté de ses effets pervers culturels et symboliques et qu'à travers une économie discursive biaisée en aboutisse à une représentation de la femme comme victime passive par excellence, ou enjeux de luttes entre groupes qui la dépassent (par exemple, le viol comme forme de génocide). Elle est enfin que le féminisme se prête, à force de cooptation, à des jeux de récupération et d'instrumentalisation, dans la lignée du féminisme impérial, légitimant profondément certaines institutions (par exemple, le Conseil de sécurité) mais aussi l'usage de la violence ou de l'incarcération.
Le chapitre conclut avec certaines pistes plus radicales que le féminisme critique explore depuis quelques années dont l'attention aux femmes comme "agents" capables de tromper les stéréotypes et d'apporter la contestation au droit international, la complexification du féminisme par une attention à l'ensemble des sujets genrés dont les minorités sexuelles mais aussi les hommes, et enfin le besoin d'une décolonisation du féminisme internationaliste et d'une redécouverte de la manière dont c'est souvent le droit international lui-même qui reproduit la domination masculine.
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Criminal Law Forum, Vol. 26, No. 1, 2015 , Feb 26, 2015
This paper argues that the protection of civilians has slowly attained an increasingly central po... more This paper argues that the protection of civilians has slowly attained an increasingly central position in the design and implementation of peace operations. It contends that this change emerged from a series of both conceptual and operational evolutions that took a long time to take hold, and only did so as a result of repeated and persistent crises that put the entire concept of peace operations in crisis. The paper seeks to explore the specific course that peace operations have taken since the early 1990s in order to assess the degree to which the protection of civilians and, as a result, a greater willingness to use force, has become a dominant, even defining characteristic of peace operations. It begins by charting how peace operations have undergone a metamorphosis of sorts as a result of the rise of an increasingly strong anti-atrocity turn in international law and policy (section I). It then examines the relationship of peace operations to both the notion of R2P and the ICC, finding certain structural affinities between all three (section II). Finally, it seeks to interrogate the extent to which this evolution is determined by international norms and might prompt a process of legalization of a duty to protect civilians in peace operations (section III). The paper seeks to weave together strands of operational, political and legal thinking about peacekeeping that are often not dealt with together in a way that results in an impoverishment of our understanding of the issues at stake.
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Revue interdisciplinaire d'études juridiques, 2014, 2014
French Abstract: Cet article est une exploration des limites inhérentes à la notion de responsabi... more French Abstract: Cet article est une exploration des limites inhérentes à la notion de responsabilité individuelle en droit et justice pénaux internationaux. Il dégage les fondations intellectuelles de l'émergence de la responsabilité individuelle en droit international au-delà du droit positif, et relève ses origines pragmatiques et utilitaires (éviter l'amertume de la responsabilité collective), analythiques et historiques (ce sont bien les individus qui commettent des crimes), criminelle et internationale (la responsabilité individuelle est requise pour la convergence et la modernisation des deux) et ontologique et morale (il serait unjuste de condamner d'autres que les individus). La conception dominate de la responsabilité pénale qui en ressort est en même temps individualiste (l'individu comme atome libre isolé de son environnement), cosmopolite (l'individu doit des obligations directement à la communauté internationale), stigmatisante (l'individu comme ennemi de l'humanité) et hégémonique (la responsabilité individuelle domine de plus en plus d'autres formes de responsabilité internationale). L'article se concacre par la suite à identifier trois limitations majeures de la responsabilité individuelle en droit international.
Premlièrement, cette responsabilité comporte un coût historique et historiographique dans la mesure où elle promeut un "narrative" des atrocités qui met en avant de manière systématique la nature "agentique" de l'individu aux dépenses des causes institutionnelles et structurelles; en outre, en rendant les individus responsables du tout, on crée une confusion entre les notions de culpabilité, de responsabilité et des causes d'un crime. Enfin, la causalité tend à être subvertie, les individus étant assimilés à des demi-dieux qui instrumentalisent l'Etat pour leurs desseins plutôt que l'inverse qui demeure plus plausible.
Deuxièmement, la responsabilité individuelle en droit pénal international comporte des coûts éthiques importants. Elle risque de blamer les individus de manière excessive pour des actes pour lesquels ils ne sont qu'en partie responsables, les transformant en bouc émissaires. Elle tend par la même occasion à aboudre l'Etat et la communauté internationale de leur responsabilité propres dans la survenance d'atrocités. Enfin, elle permet à la société et aux tierces parties d'échapper en partie à leur examen de conscience.
Troisièmement, la responsabilité pénale individuelle comporte des limitations judiciairres: dans la réalité l'examen des respoinsabilités individuelles passe presque toujours par l'examen connexe de la réalité collective des crimes de masse. En termes de justice transitionnelle, l'attention à quelques individus peut constituer un obstacle à la réalisation d'une responsabilité collective. En termes de réparations, on aboutit à un régime devant la CPI éminemment problématique qui concentre l'attention sur quelques coupables désargentés plutôt que sur les systèmes productifs de criminalité.
English Abstract: This article is an exploration of the limits inherent to the notion of individual responsibility in international criminal law and justice. It begins by highlighting some of the intellectual foundations for the emergence of individual responsibility in international law beyond its positivist grounding, including a pragmatic and utilitarian basis (avoiding the bitterness associated with the Versailles settlement), an analytical and historical basis (it is actually individuals who commit crimes), a criminal and international law basis (individual responsibility is required to modernize both and encourage their convergence), and an ontological and moral basis (it would be unfair to indict anyone else than individuals). The resulting concept of criminal responsibility in international law is then characterized as individualistic (the individual is cut off from its social environment), cosmopolitan (the individual owes duties directly to the international community), stigmatizing (the individual criminal is the enemy of mankind) and hegemonic (individual criminal responsibility increasingly dominates other forms of international responsibility). The article then turns two three major limitations of individual responsibility based on this analysis.
First, individual responsibility in international law has a historical and historiographical cost to the extent that it promotes a narrative of atrocities that systematically foregrounds individual agency at the expense of institutional and structural causes; that, in foregrounding the responsibility of individuals and making them liable for the whole, it muddles the distinction between guilt of a crime, responsibility for a crime, and cause of a crime; and that it tends to inverse causality, turning individuals into criminal semi-gods who instrumentalize the state for their purpose rather than the more plausible opposite.
Second, individual responsibility in international criminal law can have some significant ethical costs. In some cases it may excessively blame individuals for acts that they are only partly liable for, turning them into scapegoats; it consequently tends to absolve the state and the international community for their own share in the occurrence of atrocities; and it also tends to society and third parties too easily off the hook.
Third, individual responsibility also has some judicial limitations: international criminal justice is constantly claiming to concentrate on individual responsibility but, mass atrocities being what they are, is almost systematically led to examine collective responsibility both at some cost to the accused and to a better understanding of how the individual and the collective relate; in terms of transitional justice, focus on a few select individuals may hinder a realization of collective forms of responsibility, even as local public opinions will always perceive individual accused as standing in for their community; in terms of reparations, the focus on individuals leads to a highly problematic reparations regime in which all the attention is directed at the impecunious few rather than criminality-producing systems.
The article concludes with a few thoughts on the overall social cost of such a focus on individual responsibility, and how to move beyond it.
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This article argues that international criminal justice as a field and project is chronically aff... more This article argues that international criminal justice as a field and project is chronically afflicted by forms of anxiety. In particular, the article is interested in what might be described as a form of existential disciplinary anxiety linked to a constant search for meaning. The field's anxieties are described as those of dependence, politics, method, legitimacy, authenticity, fairness, moral clarity, identity, status and responsibility. Anxieties are deeply woven into the rhetorical and practical structures of international criminal justice. To escape them would be to escape the field's condition, a difficult proposition that might well be the project's downfall.
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The Utah Law Review brought in a panel of experts for a symposium on the legal and ethical limits... more The Utah Law Review brought in a panel of experts for a symposium on the legal and ethical limits of technological warfare. This roundtable discussion crystalized the issues discussed throughout the symposium. The collective experience and diversity of viewpoints of the panelists produced an unparalleled discussion of the complex and poignant issues involved in drone warfare. The open dialogue in the roundtable discussion created moments of tension where the panelists openly challenged each other’s viewpoints on the ethics and legality of drone warfare. The discussion captured in this transcript uniquely conveys the diversity of perspectives and inherently challenging legal and moral questions associated with drone warfare.
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Utah Law Review, Vol 2013, No 5, 2013
One of the difficulties with the debate on drones is how it has become a sort of lightning rod fo... more One of the difficulties with the debate on drones is how it has become a sort of lightning rod for all kinds of anxieties about the use of force in today’s world. Drones are, often problematically, the emblematic weapon for a range of other phenomena and so, unsurprisingly, attract much polemic. The challenge, thus, is to find what is problematic specifically with drones as a technology in armed conflict that could not be dealt with better by invoking a larger genus of problems. In order to do this, I outline a series of ways in which drones have been seen as problematic which I argue are either not specifically humanitarian, or really interested in something else such as what the legal framework applicable to the “war on terror” should be. Separating these very important debates from the humanitarian questions that ought to be asked about drones as such is crucial if one is to make conceptual headway. I then examine the issue of whether there is anything that is specific and/or inherent to drones, and address the question of whether it is that drones cause unwarranted harm to civilians. I seek to explain how, regardless of the answer to that complicated question, drones are much more likely to be perceived as inflicting excessive damage due to their highly discriminatory potential but also, crucially, the way in which they maximize the safety of the drone operator. If anything, it is this aspect that is most specific and novel about drones. I argue that this absolute safety of the operator not only maximizes states’ ability to minimize collateral harm, as has already been observed elsewhere, but also has the potential to fundamentally alter the laws of war’s tolerance for collateral harm, which was always based on the assumption of a tradeoff between harm to the attacker and to “enemy civilians.” It is this tradeoff that is increasingly at risk of being rendered moot. I finish with an attempt to contextualize the drone problem within a larger history of exogenous technological shock to international humanitarian law and how it has addressed them. Overall, the article is interested not just in determining whether drone use may or may not be “legal” but also more broadly how it impacts some of the moral underpinnings of the laws of war.
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This paper was first presented at a conference organized by the Grotius Centre in Hague on the ju... more This paper was first presented at a conference organized by the Grotius Centre in Hague on the jus post bellum. It seeks to take a new look at a critical question, whether rebels in non-international armed conflicts should benefit from an amnesty at the close of hostilities. Such an amnesty effectively amounts to recognizing a privilege of belligerency retrospectively for rebels, at least insofar as the penal consequences of their acts are concerned. Protocol II takes a cautious position in that direction requiring states to "endeavor to grant" such amnesties, but the provision clearly created some unease at the 1974-77 conference. The chapter traces this unease to the fact that it is not clear what the rationale for the rule is, nor why it has its place in an international humanitarian law treaty. Amnesties may indeed facilitate peace or reconciliation, but one could also argue that in absolving those guilty of some of the worst offences against the state's order they are the very anti-thesis of seeking to reestablish the rule of law. The argument is often heard that conferring a privilege of belligerency will encourage non-state actors' compliance with international humanitarian law, but that simplistic assumption is criticized as not psychologically or sociologically plausible. Inquiring into the foundation of the privilege of belligerency in international armed conflicts, it is argued that contrary to what is often assumed the privilege has no logical or necessary connection to the jus in bello project, and instead manifests the relative legitimacy of war, even in an age of jus contra bellum, as that form of violence engaged in by states or entities that can be assimilated to it. In this classical view, then, the privilege of belligerency results from an "agreement to disagree" between equals against the background of an irreducible international order. In a priori non-international situations, the ability to emulate state-like characteristics and produce an objectively international situation by puncturing the legal unity of the state substantially aligns such situations with those of international armed conflicts. The amnesty then manifests a recognition that the "criminal" had effectively become the "enemy." However, that particular concept of the foundation of the privilege of belligerency is only so strong as international society's concept of the jus ad bellum is relatively weak. The privilege effectively protects the situation of the unjust/illegal warrior in ways that may be hard to rationalize, especially in a context where its humanitarian benefits have been shown to be meagre. In non-international armed conflicts, Protocol II's injunction to confer amnesties covers both acts of killing in war and the very fact of taking up arms. The latter is not a humanitarian issue, and it is therefore unclear what business a humanitarian treaty has of telling states how they should deal with a fundamental threat to their internal sovereignty. To the extent that the former is not strictly necessary to the humanitarian project, the encouragement to provide an amnesty is both over inclusive (encouraging amnesties for unjust/illegal rebellions) and under inclusive (failing to render amnesty compulsory in cases where they are manifestly just/legal). The paper finds that whether amnesties should be granted ultimately depends on whether one considers that there is at present a jus ad rebelium in international law. It concludes with a few thoughts on the power of considering these issues ex post in the just post bellum, as a way of evaluating a non-state actor's overall performance in war that safely fuses jus in bello and jus in bellum issues.
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This article is an attempt to sketch the ambiguity of the international legal attitude towards Sy... more This article is an attempt to sketch the ambiguity of the international legal attitude towards Syria in the early years of the conflict. It seeks to problematize the humanitarian vision of civilians as pure "victims" when many were politically active, and focuses on civilians' resilience in light of the failure of "security providers" in the conflict. It suggests that we need to better rethink the nature of international interventions to support civilians.
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This draft paper currently under submission aims to explore the issue of the UN's responsibility ... more This draft paper currently under submission aims to explore the issue of the UN's responsibility for the cholera epidemic in Haiti with a view to examining some of the current limits of the accountability of peace operations.
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This paper (in French) was presented at a conference organized by the University of Grenoble's CE... more This paper (in French) was presented at a conference organized by the University of Grenoble's CESICE. Drawing on recent philosophical work that tackles the moral legitimacy of the laws of war, it criticizes the rigidity of the jus ad bellum/jus in bello separation in one particular emblematic case, that of humanitarian missions authorized by the Security Council. Whilst there are highly legitimate concerns about a differentiated application of the jus in bello were it to lead to some parties not being bound (or being less bound) by constraints in warfare, such concerns largely evaporate if the argument is that certain parties should hold themselves to even higher standards than those traditionally contemplated by the laws of war. The paper argues that humanitarian operations authorized by the Security Council arise at the intersection of what are two test cases for the jus in bello in that respect, and that an excessively "material" view of what constitutes a conflict leads us to miss the finer point about whether a conflict can truly be said to arise. First, there is a strong moral intuition that humanitarian interventions that draw on all the flexibility of the laws of war will sooner or later run into normative contradictions. Second, there has long been a minority view internationally that, on political-theoretical and normative grounds, UN authorized and particularly UN implemented missions should not be considered as making the world organization a mere "party" to armed conflicts that it seeks to pacify. Put together, these two intuitions suggest that what the Security Council was doing in Libya or Ivory Coast ought to be seen as having more to do with a "police operation" enforcing key international norms than a conflict as that term can be understood. The paper then attempts to draw some practical implications from the intuition. It argues that at the very least rigid adherence to the laws of war should be axiomatic in SC mandated humanitarian operations, but that an argument can be made for applying a different body of norms to such interventions, possibly having much more to do with human rights law. Moreover, the paper argues that although UN troops should be held to higher standards, the flip side of the coin is that they should also benefit from greater protections, indeed those same protections that are afforded to peacekeepers not engaging in belligerency. Only such protections are consonant with UN troops' status as enforcers of international law rather than merely parties to a conflict. Arguments that those two moves would weaken the application and enforcement of international humanitarian law are dismissed as superficial and illogical. The paper concludes with a few thoughts on the need to think about the general economy of international law when addressing such matters, rather than being entirely focused on the implementation of the laws of war as a specialized regime.
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This paper was presented at a workshop on reparations before the ICC organized by the Université ... more This paper was presented at a workshop on reparations before the ICC organized by the Université de Montréal. It discusses the challenge of awarding individual or collective reparations. It finds a certain bias so far in practices and commentary in favor of individual awards, which it argues reflects an individual bias in international criminal justice more generally. It makes the case that collective reparations will in many cases be superior not only on pragmatic grounds but also because they make most sense from the point of view of transitional justice. Most importantly, collective reparations are the most faithful to a construction of most international crimes as crimes that target groups (e.g.: the Genocide Convention groups) or categories (e.g.: civilians) rather than individuals as such.
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The ICC's supposed "neo-colonialism" has been the focus of much discussion based on the fact that... more The ICC's supposed "neo-colonialism" has been the focus of much discussion based on the fact that the Court's Prosecutor has been almost exclusively interested in cases dealing with the African continent. This paper (in French) will try to go beyond the issue of a neo-colonialism as seen exclusively through a critique of the over-representation of African indictees, on the basis that it fails to explain a series of ways in which African states and civil society are positively engaging with international criminal justice. It argues that if there is a form of neo-colonialism at work it is down to more subtle post-colonial treatment of Africa through the categories of international criminal justice. This includes a tendency to "orientalize" African crime, for example through an insistence on crimes seen as typically (and horribly) African (child soldiers, bush wives). More importantly, one needs to situate the relationship between international criminal justice and Africa within a "temps long" of the introduction of modern penal thoughts and practices on the continent through colonization and the construction of the post-colonial state, particularly as seen in the exclusion/instrumentalization/hybridization of forms of traditional justice.
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A very short, blog style piece on the intriguing and difficult question of whether it is legal to... more A very short, blog style piece on the intriguing and difficult question of whether it is legal to target child soldiers and if so in what circumstances. This is an issue which has not been addressed by the literature but which raises key questions about the nature of the laws of war and the protection of children in armed conflict. I argue that whilst the laws of war traditionally view all members of the armed forces as combatants who can be targeted, the fact that recruiting child soldiers is a war crime suggests that the attacking party might not be entirely blameless, especially in circumstances in which child soldiers are not currently participating in hostilities.
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Goettingen Journal of International Law, 2012 , 2012
This article proposes an exploration of the 'legacy' of the ICTY through the experience of some o... more This article proposes an exploration of the 'legacy' of the ICTY through the experience of some of its actors and observers. It is based on material provided by a dozen interviews and written in the spirit of understanding the tribunal's legacy as a collection of complex individual narratives of what the tribunal stands for, what it did well, and what it might have done better. The legacy of the ICTY as an international criminal tribunal on the one hand, and as a device for transitional justice on the other hand are considered. Although a tension is found to exist between a more 'forensic' and a more 'transitional' view of its role which is particularly manifest in determining the tribunal's constituencies and policies, the two are also linked. There is broad consensus about the tribunal's importance, but on the eve of its closing, also a sense of the limits of what international criminal justice can aspire to achieve.
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Loyola University Chicago International Law Review, Vol. 9, No. 1, 2012 , Jan 2012
This article examines the role of the battlefield as a regulatory concept in the laws of war. It ... more This article examines the role of the battlefield as a regulatory concept in the laws of war. It argues that the idea of the battlefield continues to haunt our concept of what war entails, and that the deconstruction of the battlefield thus heralds a decay of the laws of war as a normative system designed to regulate armed conflict. That development predates spectacular post 9/11 redefinitions of the battlefield, although the latter are threatening to engulf the last remains of what made war a social activity distinct from the reign of arbitrary violence.
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This paper seeks to articulate a moral case for criminalizing aggression. At the intersection of ... more This paper seeks to articulate a moral case for criminalizing aggression. At the intersection of international law and moral theory, it takes the former seriously but considers that defenders of criminalization have failed, perhaps because they have allowed themselves to be sidetracked by definitional issues, to make a robust argument for why we should take aggression as one of the worst international crimes. Although this case might seem obvious to activists, one of the reasons for the historical decline of aggression as an international crime may well be persistent (but rarely fully acknowledged) doubts about the foundations of its condemnation and their possibly incompatible character. The chapter thus seeks to make a stylized case for the importance of aggression as an international crime that rehabilitates its normative status by putting it a much more solid (yet radical) footing than what has been bequeathed to us by Nuremberg.
The paper suggests three ways of conceptualizing aggression that can be teased out of the discourse and examines their merits. It finds that the definition of aggression as first and foremost a crime against certain states' sovereignty, whilst undeniably capturing something, needs to deal with the relative normative decline of sovereignty, and its simultaneous implication in the very definition of what is or is not aggression (in a way that makes it difficult for sovereignty to act simultaneously as a signifier of meaning and gravity). Crimes against humanity and genocide as such have a better claim to our indignation, all other things being equal, because of their oppressive and asymmetrical character against the defenceless. More importantly, the paper considers the hypothesis of "war as duel" (one in which two states agree to fight each other), and concludes that we would consider a war no less grave simply because it proceeded from mutual sovereign assent from the outset. In other words, the condemnation of aggression betrays a concern with public order (war is wrong regardless of agreement by parties to it) and reflects above all our misgivings about war as a particular form of violence. We should not confuse war's most common cause (aggression) with the nature of the problem (violence in international relations).
The paper thus turns to a second possible conceptualization of aggression, namely as a form of crime against peace, as illustrated most notably at Nuremberg. Again, this captures something but the idea of peace as the value that is primarily protected by the prohibition on aggression is vague and problematic. In particular, the idea of aggression as the "mother of all crimes" fails to account for the fact that aggression is not necessarily causal of much of the violence that we find objectionable in war in that (i) we no longer typically think that the gravest atrocity crimes (genocide, crimes against humanity) necessarily or logically follow from aggression, (ii) not even war crimes follow strictly from the fact that there was an aggression, and at least we have no reason to think that the aggressor necessarily commits more such war crimes, and (iii) at any rate if it does commit a range of atrocity crimes, these are already and better prosecuted under their own name rather than as simply consequences flowing from aggression. What is more, the computing of the causal evil of aggression is made complicated by international law's obfuscation of the specific violence of war through two simultaneous moves (i) the humanitarian "laundering" of war, i.e.: the extent to which both the killing of combatants and the collateral killing of civilians (within certain bounds) are considered legal, even though they may well in practice account for the greatest number of casualties by far of any given conflict and our sense of revulsion at war, and (ii) the tendency of international human rights law to have abdicated the moral hight ground vis-à-vis the humanitarian sensitivity to war, under the broad rubric of the laws of war as lex specialis of human rights when it comes to determining who can be killed.
The paper then goes on to articulate a third and quite different conceptualization of the evil of aggression, namely that it is a violation of the rights of all of those affected by it. The suggestion is that a radical cosmopolitan take on human rights would rise up to its pacifist potential, and deny aggressor states the possibility of (entirely) hiding behind international humanitarian law to mask their sins by relying on the international reification of war. The chapter articulates some of the doctrinal moves that need to be made to realize such a change in how we conceptualize war, including expanding the recognition of extra-territorial jurisdiction in case of aggression. It seeks to explore all the implications of seeing aggression as a violation not only of the right to peace of collectives, but also to life and integrity of every individual affected by aggression, including not only civilians of the defending state, but also its combatants. More radically, it suggests that we should also consider as victims of aggression the civilians and combatants of the attacking state itself, that are put in harm's way by its decision to commit aggression, a decision that ex hypothesis cannot be justified either under international law or human rights. It also proposes a theory of how this new found sense of the human rights responsibilities of the aggressor might fit alongside the continued (but critically evaluated) application of the laws of war, seeking nonetheless to highlight a normative horizon in which the anomaly of the laws of war would be eliminated. It concludes with a few thoughts on how deploying human rights discourse against positive international law (including mainstream international human rights law) might be a way of helping the idea of human rights in international society rise up to its true potential.
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An allegorical story on what international law might become in a world where non-state actors hav... more An allegorical story on what international law might become in a world where non-state actors have an increasingly prominent role. The story was published in installments on the EJIL blog.
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Annuaire Français de Relations Internationales, 2011 , 2011
This article argues that international criminal tribunals cannot avoid the question of their just... more This article argues that international criminal tribunals cannot avoid the question of their justification, and in particular their justification in terms of results. However, these results are shown to be inherently ambiguous. The article traces this ambiguity to a series a tensions: between tribunals' criminal nature and the complex political character of the acts they judge; between their international nature and the national source of much of what comes before them; and, finally, between their purportedly judicial nature and the highly political nature of the universes that surrounds them.
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Papers by Frederic J M S Megret
American Court of Human Rights’ discourse with respect to amnesty laws and prescription.
Published in Wouter Werner, Marieke de Hoon, and Alexis Galán Ávila (eds), The Law of International Lawyers (2015).
La peur est tout d'abord qu'à force d'investissement dans les outils du droit international, les activistes des droits des femmes en viennent à oublier le potentiel critique de la pensée féministe, se condamnant ainsi à une reproduction des catégories. Elle est ensuite que le féminisme libéral passe à côté de ses effets pervers culturels et symboliques et qu'à travers une économie discursive biaisée en aboutisse à une représentation de la femme comme victime passive par excellence, ou enjeux de luttes entre groupes qui la dépassent (par exemple, le viol comme forme de génocide). Elle est enfin que le féminisme se prête, à force de cooptation, à des jeux de récupération et d'instrumentalisation, dans la lignée du féminisme impérial, légitimant profondément certaines institutions (par exemple, le Conseil de sécurité) mais aussi l'usage de la violence ou de l'incarcération.
Le chapitre conclut avec certaines pistes plus radicales que le féminisme critique explore depuis quelques années dont l'attention aux femmes comme "agents" capables de tromper les stéréotypes et d'apporter la contestation au droit international, la complexification du féminisme par une attention à l'ensemble des sujets genrés dont les minorités sexuelles mais aussi les hommes, et enfin le besoin d'une décolonisation du féminisme internationaliste et d'une redécouverte de la manière dont c'est souvent le droit international lui-même qui reproduit la domination masculine.
Premlièrement, cette responsabilité comporte un coût historique et historiographique dans la mesure où elle promeut un "narrative" des atrocités qui met en avant de manière systématique la nature "agentique" de l'individu aux dépenses des causes institutionnelles et structurelles; en outre, en rendant les individus responsables du tout, on crée une confusion entre les notions de culpabilité, de responsabilité et des causes d'un crime. Enfin, la causalité tend à être subvertie, les individus étant assimilés à des demi-dieux qui instrumentalisent l'Etat pour leurs desseins plutôt que l'inverse qui demeure plus plausible.
Deuxièmement, la responsabilité individuelle en droit pénal international comporte des coûts éthiques importants. Elle risque de blamer les individus de manière excessive pour des actes pour lesquels ils ne sont qu'en partie responsables, les transformant en bouc émissaires. Elle tend par la même occasion à aboudre l'Etat et la communauté internationale de leur responsabilité propres dans la survenance d'atrocités. Enfin, elle permet à la société et aux tierces parties d'échapper en partie à leur examen de conscience.
Troisièmement, la responsabilité pénale individuelle comporte des limitations judiciairres: dans la réalité l'examen des respoinsabilités individuelles passe presque toujours par l'examen connexe de la réalité collective des crimes de masse. En termes de justice transitionnelle, l'attention à quelques individus peut constituer un obstacle à la réalisation d'une responsabilité collective. En termes de réparations, on aboutit à un régime devant la CPI éminemment problématique qui concentre l'attention sur quelques coupables désargentés plutôt que sur les systèmes productifs de criminalité.
English Abstract: This article is an exploration of the limits inherent to the notion of individual responsibility in international criminal law and justice. It begins by highlighting some of the intellectual foundations for the emergence of individual responsibility in international law beyond its positivist grounding, including a pragmatic and utilitarian basis (avoiding the bitterness associated with the Versailles settlement), an analytical and historical basis (it is actually individuals who commit crimes), a criminal and international law basis (individual responsibility is required to modernize both and encourage their convergence), and an ontological and moral basis (it would be unfair to indict anyone else than individuals). The resulting concept of criminal responsibility in international law is then characterized as individualistic (the individual is cut off from its social environment), cosmopolitan (the individual owes duties directly to the international community), stigmatizing (the individual criminal is the enemy of mankind) and hegemonic (individual criminal responsibility increasingly dominates other forms of international responsibility). The article then turns two three major limitations of individual responsibility based on this analysis.
First, individual responsibility in international law has a historical and historiographical cost to the extent that it promotes a narrative of atrocities that systematically foregrounds individual agency at the expense of institutional and structural causes; that, in foregrounding the responsibility of individuals and making them liable for the whole, it muddles the distinction between guilt of a crime, responsibility for a crime, and cause of a crime; and that it tends to inverse causality, turning individuals into criminal semi-gods who instrumentalize the state for their purpose rather than the more plausible opposite.
Second, individual responsibility in international criminal law can have some significant ethical costs. In some cases it may excessively blame individuals for acts that they are only partly liable for, turning them into scapegoats; it consequently tends to absolve the state and the international community for their own share in the occurrence of atrocities; and it also tends to society and third parties too easily off the hook.
Third, individual responsibility also has some judicial limitations: international criminal justice is constantly claiming to concentrate on individual responsibility but, mass atrocities being what they are, is almost systematically led to examine collective responsibility both at some cost to the accused and to a better understanding of how the individual and the collective relate; in terms of transitional justice, focus on a few select individuals may hinder a realization of collective forms of responsibility, even as local public opinions will always perceive individual accused as standing in for their community; in terms of reparations, the focus on individuals leads to a highly problematic reparations regime in which all the attention is directed at the impecunious few rather than criminality-producing systems.
The article concludes with a few thoughts on the overall social cost of such a focus on individual responsibility, and how to move beyond it.
The paper suggests three ways of conceptualizing aggression that can be teased out of the discourse and examines their merits. It finds that the definition of aggression as first and foremost a crime against certain states' sovereignty, whilst undeniably capturing something, needs to deal with the relative normative decline of sovereignty, and its simultaneous implication in the very definition of what is or is not aggression (in a way that makes it difficult for sovereignty to act simultaneously as a signifier of meaning and gravity). Crimes against humanity and genocide as such have a better claim to our indignation, all other things being equal, because of their oppressive and asymmetrical character against the defenceless. More importantly, the paper considers the hypothesis of "war as duel" (one in which two states agree to fight each other), and concludes that we would consider a war no less grave simply because it proceeded from mutual sovereign assent from the outset. In other words, the condemnation of aggression betrays a concern with public order (war is wrong regardless of agreement by parties to it) and reflects above all our misgivings about war as a particular form of violence. We should not confuse war's most common cause (aggression) with the nature of the problem (violence in international relations).
The paper thus turns to a second possible conceptualization of aggression, namely as a form of crime against peace, as illustrated most notably at Nuremberg. Again, this captures something but the idea of peace as the value that is primarily protected by the prohibition on aggression is vague and problematic. In particular, the idea of aggression as the "mother of all crimes" fails to account for the fact that aggression is not necessarily causal of much of the violence that we find objectionable in war in that (i) we no longer typically think that the gravest atrocity crimes (genocide, crimes against humanity) necessarily or logically follow from aggression, (ii) not even war crimes follow strictly from the fact that there was an aggression, and at least we have no reason to think that the aggressor necessarily commits more such war crimes, and (iii) at any rate if it does commit a range of atrocity crimes, these are already and better prosecuted under their own name rather than as simply consequences flowing from aggression. What is more, the computing of the causal evil of aggression is made complicated by international law's obfuscation of the specific violence of war through two simultaneous moves (i) the humanitarian "laundering" of war, i.e.: the extent to which both the killing of combatants and the collateral killing of civilians (within certain bounds) are considered legal, even though they may well in practice account for the greatest number of casualties by far of any given conflict and our sense of revulsion at war, and (ii) the tendency of international human rights law to have abdicated the moral hight ground vis-à-vis the humanitarian sensitivity to war, under the broad rubric of the laws of war as lex specialis of human rights when it comes to determining who can be killed.
The paper then goes on to articulate a third and quite different conceptualization of the evil of aggression, namely that it is a violation of the rights of all of those affected by it. The suggestion is that a radical cosmopolitan take on human rights would rise up to its pacifist potential, and deny aggressor states the possibility of (entirely) hiding behind international humanitarian law to mask their sins by relying on the international reification of war. The chapter articulates some of the doctrinal moves that need to be made to realize such a change in how we conceptualize war, including expanding the recognition of extra-territorial jurisdiction in case of aggression. It seeks to explore all the implications of seeing aggression as a violation not only of the right to peace of collectives, but also to life and integrity of every individual affected by aggression, including not only civilians of the defending state, but also its combatants. More radically, it suggests that we should also consider as victims of aggression the civilians and combatants of the attacking state itself, that are put in harm's way by its decision to commit aggression, a decision that ex hypothesis cannot be justified either under international law or human rights. It also proposes a theory of how this new found sense of the human rights responsibilities of the aggressor might fit alongside the continued (but critically evaluated) application of the laws of war, seeking nonetheless to highlight a normative horizon in which the anomaly of the laws of war would be eliminated. It concludes with a few thoughts on how deploying human rights discourse against positive international law (including mainstream international human rights law) might be a way of helping the idea of human rights in international society rise up to its true potential.
American Court of Human Rights’ discourse with respect to amnesty laws and prescription.
Published in Wouter Werner, Marieke de Hoon, and Alexis Galán Ávila (eds), The Law of International Lawyers (2015).
La peur est tout d'abord qu'à force d'investissement dans les outils du droit international, les activistes des droits des femmes en viennent à oublier le potentiel critique de la pensée féministe, se condamnant ainsi à une reproduction des catégories. Elle est ensuite que le féminisme libéral passe à côté de ses effets pervers culturels et symboliques et qu'à travers une économie discursive biaisée en aboutisse à une représentation de la femme comme victime passive par excellence, ou enjeux de luttes entre groupes qui la dépassent (par exemple, le viol comme forme de génocide). Elle est enfin que le féminisme se prête, à force de cooptation, à des jeux de récupération et d'instrumentalisation, dans la lignée du féminisme impérial, légitimant profondément certaines institutions (par exemple, le Conseil de sécurité) mais aussi l'usage de la violence ou de l'incarcération.
Le chapitre conclut avec certaines pistes plus radicales que le féminisme critique explore depuis quelques années dont l'attention aux femmes comme "agents" capables de tromper les stéréotypes et d'apporter la contestation au droit international, la complexification du féminisme par une attention à l'ensemble des sujets genrés dont les minorités sexuelles mais aussi les hommes, et enfin le besoin d'une décolonisation du féminisme internationaliste et d'une redécouverte de la manière dont c'est souvent le droit international lui-même qui reproduit la domination masculine.
Premlièrement, cette responsabilité comporte un coût historique et historiographique dans la mesure où elle promeut un "narrative" des atrocités qui met en avant de manière systématique la nature "agentique" de l'individu aux dépenses des causes institutionnelles et structurelles; en outre, en rendant les individus responsables du tout, on crée une confusion entre les notions de culpabilité, de responsabilité et des causes d'un crime. Enfin, la causalité tend à être subvertie, les individus étant assimilés à des demi-dieux qui instrumentalisent l'Etat pour leurs desseins plutôt que l'inverse qui demeure plus plausible.
Deuxièmement, la responsabilité individuelle en droit pénal international comporte des coûts éthiques importants. Elle risque de blamer les individus de manière excessive pour des actes pour lesquels ils ne sont qu'en partie responsables, les transformant en bouc émissaires. Elle tend par la même occasion à aboudre l'Etat et la communauté internationale de leur responsabilité propres dans la survenance d'atrocités. Enfin, elle permet à la société et aux tierces parties d'échapper en partie à leur examen de conscience.
Troisièmement, la responsabilité pénale individuelle comporte des limitations judiciairres: dans la réalité l'examen des respoinsabilités individuelles passe presque toujours par l'examen connexe de la réalité collective des crimes de masse. En termes de justice transitionnelle, l'attention à quelques individus peut constituer un obstacle à la réalisation d'une responsabilité collective. En termes de réparations, on aboutit à un régime devant la CPI éminemment problématique qui concentre l'attention sur quelques coupables désargentés plutôt que sur les systèmes productifs de criminalité.
English Abstract: This article is an exploration of the limits inherent to the notion of individual responsibility in international criminal law and justice. It begins by highlighting some of the intellectual foundations for the emergence of individual responsibility in international law beyond its positivist grounding, including a pragmatic and utilitarian basis (avoiding the bitterness associated with the Versailles settlement), an analytical and historical basis (it is actually individuals who commit crimes), a criminal and international law basis (individual responsibility is required to modernize both and encourage their convergence), and an ontological and moral basis (it would be unfair to indict anyone else than individuals). The resulting concept of criminal responsibility in international law is then characterized as individualistic (the individual is cut off from its social environment), cosmopolitan (the individual owes duties directly to the international community), stigmatizing (the individual criminal is the enemy of mankind) and hegemonic (individual criminal responsibility increasingly dominates other forms of international responsibility). The article then turns two three major limitations of individual responsibility based on this analysis.
First, individual responsibility in international law has a historical and historiographical cost to the extent that it promotes a narrative of atrocities that systematically foregrounds individual agency at the expense of institutional and structural causes; that, in foregrounding the responsibility of individuals and making them liable for the whole, it muddles the distinction between guilt of a crime, responsibility for a crime, and cause of a crime; and that it tends to inverse causality, turning individuals into criminal semi-gods who instrumentalize the state for their purpose rather than the more plausible opposite.
Second, individual responsibility in international criminal law can have some significant ethical costs. In some cases it may excessively blame individuals for acts that they are only partly liable for, turning them into scapegoats; it consequently tends to absolve the state and the international community for their own share in the occurrence of atrocities; and it also tends to society and third parties too easily off the hook.
Third, individual responsibility also has some judicial limitations: international criminal justice is constantly claiming to concentrate on individual responsibility but, mass atrocities being what they are, is almost systematically led to examine collective responsibility both at some cost to the accused and to a better understanding of how the individual and the collective relate; in terms of transitional justice, focus on a few select individuals may hinder a realization of collective forms of responsibility, even as local public opinions will always perceive individual accused as standing in for their community; in terms of reparations, the focus on individuals leads to a highly problematic reparations regime in which all the attention is directed at the impecunious few rather than criminality-producing systems.
The article concludes with a few thoughts on the overall social cost of such a focus on individual responsibility, and how to move beyond it.
The paper suggests three ways of conceptualizing aggression that can be teased out of the discourse and examines their merits. It finds that the definition of aggression as first and foremost a crime against certain states' sovereignty, whilst undeniably capturing something, needs to deal with the relative normative decline of sovereignty, and its simultaneous implication in the very definition of what is or is not aggression (in a way that makes it difficult for sovereignty to act simultaneously as a signifier of meaning and gravity). Crimes against humanity and genocide as such have a better claim to our indignation, all other things being equal, because of their oppressive and asymmetrical character against the defenceless. More importantly, the paper considers the hypothesis of "war as duel" (one in which two states agree to fight each other), and concludes that we would consider a war no less grave simply because it proceeded from mutual sovereign assent from the outset. In other words, the condemnation of aggression betrays a concern with public order (war is wrong regardless of agreement by parties to it) and reflects above all our misgivings about war as a particular form of violence. We should not confuse war's most common cause (aggression) with the nature of the problem (violence in international relations).
The paper thus turns to a second possible conceptualization of aggression, namely as a form of crime against peace, as illustrated most notably at Nuremberg. Again, this captures something but the idea of peace as the value that is primarily protected by the prohibition on aggression is vague and problematic. In particular, the idea of aggression as the "mother of all crimes" fails to account for the fact that aggression is not necessarily causal of much of the violence that we find objectionable in war in that (i) we no longer typically think that the gravest atrocity crimes (genocide, crimes against humanity) necessarily or logically follow from aggression, (ii) not even war crimes follow strictly from the fact that there was an aggression, and at least we have no reason to think that the aggressor necessarily commits more such war crimes, and (iii) at any rate if it does commit a range of atrocity crimes, these are already and better prosecuted under their own name rather than as simply consequences flowing from aggression. What is more, the computing of the causal evil of aggression is made complicated by international law's obfuscation of the specific violence of war through two simultaneous moves (i) the humanitarian "laundering" of war, i.e.: the extent to which both the killing of combatants and the collateral killing of civilians (within certain bounds) are considered legal, even though they may well in practice account for the greatest number of casualties by far of any given conflict and our sense of revulsion at war, and (ii) the tendency of international human rights law to have abdicated the moral hight ground vis-à-vis the humanitarian sensitivity to war, under the broad rubric of the laws of war as lex specialis of human rights when it comes to determining who can be killed.
The paper then goes on to articulate a third and quite different conceptualization of the evil of aggression, namely that it is a violation of the rights of all of those affected by it. The suggestion is that a radical cosmopolitan take on human rights would rise up to its pacifist potential, and deny aggressor states the possibility of (entirely) hiding behind international humanitarian law to mask their sins by relying on the international reification of war. The chapter articulates some of the doctrinal moves that need to be made to realize such a change in how we conceptualize war, including expanding the recognition of extra-territorial jurisdiction in case of aggression. It seeks to explore all the implications of seeing aggression as a violation not only of the right to peace of collectives, but also to life and integrity of every individual affected by aggression, including not only civilians of the defending state, but also its combatants. More radically, it suggests that we should also consider as victims of aggression the civilians and combatants of the attacking state itself, that are put in harm's way by its decision to commit aggression, a decision that ex hypothesis cannot be justified either under international law or human rights. It also proposes a theory of how this new found sense of the human rights responsibilities of the aggressor might fit alongside the continued (but critically evaluated) application of the laws of war, seeking nonetheless to highlight a normative horizon in which the anomaly of the laws of war would be eliminated. It concludes with a few thoughts on how deploying human rights discourse against positive international law (including mainstream international human rights law) might be a way of helping the idea of human rights in international society rise up to its true potential.
ENGLISH VERSION FOLLOWS
"La dernière décennie a vu la mort de Slobodan Milosevic, Augusto Pinochet, Saddam Hussein, Oussama Ben Laden ou Mouammar Kadhafi. Car les génocidaires, criminels de guerre, dictateurs, tyrans ou agents du terrorisme international des XXe et XXIe siècles, meurent aussi. Dans tous les cas, les questions que posent ces disparitions singulières sont identiques, bien que se situant dans des contextes différents : quand et comment ces criminels sont-ils morts ? Que faire de leur dépouille ? Comment appréhender leur héritage, la mémoire de leur personne et de leurs crimes ? Malgré leur caractère crucial et leur actualité, ces questions n’ont pour l’heure suscité que peu de travaux dans le domaine des sciences juridiques et sociales. Si l’on observe un important regain d’intérêt pour la parole du bourreau en tant que source d’information, rares sont les études qui s’attachent au sort de celui-ci, une fois décédé. Cet ouvrage vise précisément à combler ce manque. La réflexion interdisciplinaire engagée ici met en dialogue les apports du droit, de l’histoire, de l’anthropologie, de la sociologie, de la littérature et de la psychologie autour de trois thématiques principales : les modalités de la (mise à) mort du bourreau, le traitement post-mortem de son corps, et la question de la patrimonialisation face aux exigences de justice et de réparation. Ce volume entend ainsi montrer les enjeux entourant la fin des criminels de masse – une mort jamais anodine, même lorsqu’elle est naturelle"
Sévane Garibian
"The last decade witnessed the death of a number of notable war criminals, perpetrators of genocide, dictators and terrorists, amongst these Slobodan Milosevic, Augusto Pinochet, Saddam Hussein, Osama Ben Laden and Muammar Gaddafi. Though the circumstance of each death may differ greatly, the questions each death raises are the same: when and how did these criminals die? What should one do with their remains? How does one apprehend their legacy, the memory of their persona and their crimes? Despite being of a timely and crucial nature, these questions have prompted little attention in the field of legal and social sciences to date. While there is a renewed interest in the perpetrator’s discourse as a source of information, studies that refer to his fate once he is dead are rare. This work intends to fill this gap. The interdisciplinary reflection undertaken here puts in dialogue the contributions of law, history, anthropology, sociology, literature and psychology, focusing on three main themes: the death of the perpetrator, the post-mortem treatment of his body, and the question of patrimonialization, faced with the demands of justice and reparation. This volume intends to shed light on the issues surrounding the end of mass criminals – a death never banal, even when it is natural"
Sévane Garibian