International Relations

Rule of Law vs. Rule of Power

Matthew P. FARRELL (2016), The London School of Economics and Political Science, Msc in International Relations. 

     I. Introduction

Theodore Roosevelt (1903) once famously said: “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it.” Looking back, this homage to the rule of law seems almost prescient. But what if the reason that Roosevelt’s statement seems accurate is that the rhetoric of the rule of law has no competitor? An alternative “rule of” rhetoric may give the tools to challenge the idea that the rule of law Roosevelt desired has prevailed. The intent of this paper is to develop one such new “rule of” – the rule of power. It is developed in contrast to the rule of law by considering how each influences the assessment of the impact of international criminal tribunals (ICTs) on international law and politics.[1] Depending on which paradigm is employed, the impact on the former is the creation of either important or impotent jurisprudence and the impact on the latter is the reinforcement of a culture either of accountability or of impunity.

The hypothesis is that the impact of ICTs is not inevitably the reinforcement of the rule of law as Constructivism would have us believe, nor inherently negligible as pure Realism suggests, but that such tribunals are subject to processes which act in tandem. The paradigm of the rule of law intimates a process of constitutionalisation. The paradigm of the rule of power reveals a contrary process of deregulation. As such, the impact of ICTs on international law and politics is both plural and sometimes contradictory.

Section II gives some pertinent definitions as well as an introduction to the relevant literature. Section III assesses the impact of ICTs with the rule of law paradigm borne in mind. The intent is to make as clear as possible to the reader what the rule of law entails in practice, namely the creation of jurisprudence and of a culture of accountability. Section IV assesses the impact of ICTs in terms of the rule of power, and argues that the jurisprudence of ICTs is less potent than the rule of law suggests and that the culture of accountability some claim is strengthened by ICTs is being developed parallel to a culture of impunity. The final section makes some closing remarks with the intention of provoking further work employing the concept of the rule of power.

     II. Terminology of the Rule of Law and Rule of Power

The rule of power is a relatively new concept and is presented in this paper in contrast to the rule of law. Consequently, this section first considers the rule of law and the related terms “jurisprudence,” “culture of accountability,” and “constitutionalisation” to provide a backdrop for the subsequent explanation of the rule of power and the related terms “deregulation,” and “culture of impunity.” Finally, “impact” and ICTs are considered.

The traditional understanding of the rule of law derives from Samuel Rutherford’s 1644 text Lex Rex (the law is king), though the modern conception is frequently attributed to A.V. Dicey (1885: 171).[2] In both conceptions, the core idea is that the law must be applied consistently regardless of its object, including state leaders. This paper follows in the same vein, seeing the rule of law as the “general application and consistent implementation” (Chesterman, 2008: 342) of international legal principles to situations which fall within the jurisdiction of international legal mechanisms.[3] Two important ways that the rule of law materializes are in jurisprudence – the use of the ruling of one court by that court or another court to arrive at a ruling in a different case, and the culture of accountability – the idea that those involved in gross violations of international law, including elites, must expect to face international legal repercussions. Jurisprudence is especially pertinent to international law, but through its role in setting precedents, it may also build up the culture of accountability. Similarly, though the culture of accountability primarily affects political actions, it may also impact international law by motivating states to create, accede to, or refer cases to ICTs.

The rule of law and its expansion due to the process of constitutionalisation – “the possibility that an organic and fundamental law of the international community is emerging” (Bianchi, 2002: 268)[4] – are generally considered positive within from the Constructivist school of International Relations (IR) and the corresponding Sociological school of International Law (IL). [5] These schools laud the indication of a universal system of international law.[6],[7] On the other hand, the rule of law tends to face criticism from Realists in IR and IL.[8] These scholars tend to assert that states seek to avoid setting a precedent of the binding nature of international law by engaging in the process of deregulation – “the deliberate and gradual disappearance of the rule of law” (Aznar-Gómez, 2002: 225).[9]

This idea is crystalized in the concept of the rule of power, which “allows, for each particular case, the creation of a new scenario governed by case-by-case authoritative decisions” (Aznar-Gómez, 2002: 224, emphasis added). Essentially, the rule of power permits actors to avoid sanctions which might otherwise be levied on the basis of precedent by not allowing precedent to be set. Two ways that the rule of power materializes are the establishment of ad hoc rather than permanent tribunals, which mitigates the creation and exchange of jurisprudence and the implicit maintenance of the culture of impunity, which counteracts the constraining effects of the culture of accountability.

In the next section, the above concepts will be operationalized in considering the impact of ICTs, but first a moment is spent on explaining what is meant by impact and international criminal tribunal. Applied to ICTs, impact might refer to effects on peace and reconciliation (see Thakur and Malcontent 2004; Meron 1997), education,[10] or “judicial colonialism” (Thakur and Malcontent, 2004: 276), among others. This paper takes a narrower view of impact, specifically focussing on jurisprudence as well as cultures of accountability and of impunity. Contrarily, a wide view is taken of ICTs, which are considered to include 1st generation tribunals – the Nuremburg and Tokyo Tribunals, 2nd generation tribunals – including the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the Special Court for Sierra Leone (SCSL), and the 1st permanent international judicial mechanism –j the International Criminal Court (ICC). Given the plethora of ICTs, and their evolution over time,[11] a comprehensive analysis including every ICT is impossible here, but it is hoped that others will take up the rule of law-rule of power dyad to analyse the tribunals which space prohibits us to consider here.

      III. Impact in the Rule of Law Paradigm

Maogoto (2004) writes that “Although international criminal tribunals began on an ad hoc basis, they have become the international community’s primary response to humanitarian crises” (8). This section employs the paradigm of the rule of law to consider the impact of such tribunals in terms of the creation of jurisprudence and the culture of accountability.

1. The Importance of Jurisprudence

When a court produces a ruling, it may be drawn upon by other courts to interpret a case or justify a ruling. This influence on the adjudication process means that jurisprudence always holds the potential to have an impact on law. The rule of law paradigm helps to highlight jurisprudence by drawing attention to the consistencies in international law. In this section, we will consider jurisprudence of the ICTY which was utilized by the SCSL and thus had an impact on international law.

The jurisprudence created by ICTs is most often employed by other ICTs. Fatou Bensouda, the prosecutor of the ICC, stated that “[the ICC] had a lot to learn from the ad hoc tribunals [- the ICTY and ICTR]. They have set the jurisprudence” (Meron and Bensouda, 2013: 407). The exchange of jurisprudence is not limited to these three ICTs however. An important benchmark in international law was “the 1999 [ICTY] Appeals Chamber judgement in Prosecutor v. Tadić in which the ICTY had embraced the concept of joint criminal enterprise [JCE]” (Wigglesworth, 2008: 818), which some argue “marks a significant lowering of the culpability threshold” (Simpson, 2007: 120).[12],[13] This judgement was employed as jurisprudence by the SCSL in Prosecutor v. Sesay, Kallon and Gbao in which the Appeals Chamber “affirmed that the convicted persons participated in a [JCE]” (King, 2013: 15).[14],[15] Not only was Prosecutor v. Tadić used as jurisprudence, but Prosecutor v. Sesay, Kallon and Gbao now has the potential to be used as jurisprudence as well. The jurisprudence produced by the ICTY and SCSL in these cases impacts international law by providing the foundation for further decisions on the basis of JCE.[16]

2. The Culture of Accountability

Above we assessed the legal impact of ICTs. Here we assess their impact on international politics through the culture of accountability, which is highlighted by the rule of law paradigm. If the culpability threshold has been lowered as mentioned above, it may be because, as Kim and Sharman (2014) suggest, “actors are making means-ends calculations to change the cultural structure” (422) into one of accountability.[17],[18] This shift, or more precisely the culture of accountability itself, impacts international politics notably as it affects actors’ decision-making and practice.[19]

The culture of accountability first took root following World War II, when the Nuremberg and Tokyo Tribunals “firmly established that there are certain crimes of international concern which incur individual criminal responsibility” (Kerr and Mobek, 2013: 22) and “demonstrated that accountability was not only desirable, but also feasible” (ibid: 18). The twin ideas of individual criminal responsibility and accountability were the origin of the discourse on the culture of accountability. The culture of accountability has continued to grow, particularly after 1990 with the implementation of the ad hoc tribunals, such that “the expectation of impunity previously enjoyed by state leaders guilty of major corruption and human rights crimes is now in the process of being replaced by very similar but separate norms of individual accountability” (Kim & Sharman, 2014: 418). This process of constitutionalisation, as mentioned, is bolstered by ICTs.

The reference par excellence as regards accountability is the Pinochet case, where it was found that political status, including state immunity, does not shield individuals from prosecution in the case of gross violations of the law.[20],[21] At the international level, this has been reinforced by various ICTs, notably the SCSL in the Charles Taylor case.[22] In 2008, Gillian Wigglesworth proposed that “there may be a greater fear of prosecution and less tolerance of impunity than in the past, particularly if Taylor is duly convicted” (825). On September 23, 2013 the Appeals Chamber of the SCSL sustained the majority of the charges brought against Taylor and he is now serving a 50 year sentence.[23] In effect, it is now undisputable that any actor may be sentenced for gross violations of international law regardless of their political status. Assuming that Wigglesworth was correct, Taylor’s conviction will have had an important influence on international politics because it demonstrates the extent of the culture of accountability thus forcing elites to consider accountability when making decisions.

ICTs additionally weigh on international politics because “there is now an international duty for third-party states to hold leaders individually accountable” (Kim & Sharman, 2014: 419) and because elites themselves are restricted in their modi operandi (for example, torture is a less viable method of information-gathering because it may be sanctioned). The culture of accountability reinforced by ICTs thus impacts international politics with respect to diplomatic and intrastate practices.

IV. Impact in the Rule of Power Paradigm

Section III gave an optimistic assessment of the impact of ICTs in terms of the rule of law. This section provides a counterpoint by assessing the impact of ICTs in terms of the rule of power. It takes inspiration from the argument made by Aznar-Gómez (2002) that the United Nations Security Council has sought to implement the rule of power in response to human rights violations. However, this paper posits that these states and others seek to implement the rule of power not only with respect to human rights, but also in the broader realm of international criminal law?

1. The Impotence of Jurisprudence

This section considers how the ad hoc nature of ICTs may complicate the production and dissemination of jurisprudence. The rule of power reveals the impotence of jurisprudence in that ICTs “construct [their] rulings within a limited legal framework and apply a case-by-case approach, coming from and going to a deliberate creative ambiguity” (Aznar-Gómez, 2002: 232).[24] Consequently, the ad-hocism of ICTs may diminish their impact on international law with respect to jurisprudence.

The impotence of ICT jurisprudence begins with the selectivity of cases. The rule of power paradigm proposes that one of the reasons the creation and use of ICTs is selective is to prevent the creation of jurisprudence. Maogoto (2004) states that “The singling out of certain conflicts in a world full of aggression and inhumanity highlights the hypocritical selectivity of major powers. The complacency of government leaders results in inaction, compelling the occasional ad hoc tribunals that have ethical weaknesses and present legal and practical difficulties” (10). By creating and referring cases to ICTs on an ad hoc basis, then, states pre-emptively constrain jurisprudence, limiting the impact of ICTs on international law.[25]

Once an ICT is created, the impotence of jurisprudence is ensured by the ad hoc nature of the institution. Two common traits of ICTs are their restricted jurisdiction and the unique circumstances of the crimes they adjudicate. Additionally, “The substantive parts of the judgements are often linked to the specific problems of a particular case” (Dormann, 2000: 285). As a result, judgements (i.e. jurisprudence) are highly context-specific and cannot be transposed between ICTs without significant justification. The difficulties of sharing jurisprudence in ICTs is further compounded by the fact that, “the considerable indeterminacy of [the crimes they adjudicate] – in terms of the element of scale and gravity – is such that its application and interpretation is highly context specific. In this respect, [ICT] precedents may be of limited value in other fact situations” (Akhavan, 2000: 284). We see here the difficulties of deploying jurisprudence amongst ICTs, which diminishes their impact on international law.

2. The Culture of Impunity

Above we considered how the ad hoc nature of ICTs may weaken their legal impact. Here we discuss their impact on international politics, particularly as it manifests in the implicit maintenance of a culture of impunity. Like the rule of power, the culture of impunity is rarely discussed by elites. “Every state says it believes in accountability” (IR464 Trip, 2016) and to say otherwise would be to alienate oneself from the dominant community surrounding the culture of accountability (Kim and Sharman, 2014). Given the challenge of finding official statements regarding the culture of impunity, this section relies on informal statements and inferences.[26] The culture of impunity impacts international politics through its effects on decision-making and practice.

Having spoken to the impact of ICTs in reinforcing a culture of accountability, it may seem counterintuitive to claim that they also sustain its antithesis, the culture of impunity. However, the two perspectives are reconcilable. According to Paul Lauren in Thakur and Malcontent (2004), the Rome Conference to establish the ICC saw “the continuing clash between those who believed in a culture of impunity and those who believed in the need to establish a new culture of accountability” (34). Although the creation of the ICC would seem to indicate the victory of the culture of accountability, the rule of power paradigm reminds the critical observer that “There is always a group of self-interested people in international affairs who will seek to apply international law cosmetically” (IR464 Trip, 2016). The creation of the ICC may be seen in this light: rather than genuinely supporting the culture of accountability, states created the ICC in order to obscure their aversion to international prosecution. For example, one individual commented that “the main reason [western states] subject [themselves] to international scrutiny […] is that [they] have the capacity to prosecute [themselves]” (IR464 Trip, 2016). This implies that such states do not expect a court of last resort such as the ICC to tangibly impact them. Extending this “cosmetic” logic beyond the ICC leads to the conclusion that ICTs impact international politics by providing a smokescreen behind which the culture of impunity may continue.

ICTs may also play a role in sustaining the culture of impunity when they are subverted by political expedience or otherwise seen to fail. Maogoto (2004) speaks to the former when he writes: “Justice is compromised through a series of mechanisms, both legal and political. […] That is why so many international and noninternational conflicts have resulted in de jure or de facto immunity for the leaders, as well as most of the perpetrators of international […] violations” (7). The political interference Maogoto identifies furthers the culture of impunity because it highlights the dependence of ICTs on political power. If actors are highly aware of their own power vis-à-vis ICTs, they are more likely to engage in illicit activities and rely on that power to avoid international prosecution.[27] The failings of ICTs also play a role in sustaining the culture of impunity. For example, President Omar Al-Bashir, for whom two arrest warrants have been issued, “[travels] to states that are parties to the Rome Statute, who have obligations under the Rome Statute to arrest and surrender him, but for one reason or another, sometimes political reasons, he is not arrested” (Meron and Bensouda, 2013: 409).[28] This example demonstrates the weakness of ICTs to actors and consequently bolsters the culture of impunity because it sets a precedent for non-enforcement. As a result, actors may begin to consider gross violations of international law viable so long as they are reasonably certain that ICTs will be unable to enforce their decisions. ICTs thus impact international politics by reinforcing the culture of impunity.

Conclusion

In order to develop the rule of power paradigm, this essay has considered the impact of ICTs on international law and politics. It was found that, assessed through the lens of the rule of law, ICTs may contribute to international law through the production of jurisprudence and to international politics through the development of the culture of accountability. However, when the rule of power was employed, it revealed that the impact of ICTs may be prey to the process of deregulation. An assessment of ICTs through the lens of the rule of power revealed that their ad hoc nature may inhibit the potency of ICT jurisprudence and that they may conceal and contribute to the culture of impunity.

These two diverging assessments of impact demonstrate the importance of the rule of power as a paradigm: the rule of law taken alone yields conclusions that can be countered by the presence of a corresponding opposite. The addition of the rule of power allows for a more nuanced evaluation of the international legal system, helping to explain its impact as well as when and why it receives support and opposition from different actors. The rule of power is also important because it provides an alternative way of looking at the evolution of the international legal system. Proponents of the rule of law like Roosevelt see it as an end to be achieved, the defining trait of a universal international legal system attained through the process of constitutionalisation. The rule of power provides an alternative scenario in which the process of deregulation wins out and the system relies entirely on case-by-case analyses without precedent.

Constraints on space, as well as the need to both explain and employ the concept of the rule of power, have limited the aspects of impact, array of ICTs, and range of international law which were considered in this paper. Further research might seek to rectify these lacunae by employing the rule of power paradigm in addressing some of the following questions; How might state sovereignty be reconciled with state endeavours to build an international legal system? Is it possible to create a truly permanent international court which does not act as an ad hoc ICT? To what extent is international law evolving and what incarnations might it take? Employing the rule of power in answering these questions and others is sure to ameliorate our understanding of international law and politics.

References

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Aznar-Gómez, Mariano. (2002) ‘A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation?’ European Journal of International Law (13:1), 223-241.

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Dicey, A.V. (1885) Lectures Introductory to the Study of the Law of the Constitution. Oxford: Oxford University Press.

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Hoffmann, Stanley. (1966) Conditions of World Order. Boston: Houghton Mifflin, 1966.

IR464 Trip. (2016): Comments at meetings during this trip were made under Chatham House rule. Quotations may have been modified to protect the anonymity of the speaker.

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[1] In this undertaking, I situate myself on the fringes of the debate on the international rule of law, hoping to develop the rule of power as a twin concept. Dyads such as sovereignty-supranationalism, conventional law-customary law, and rule of power-rule of law may oversimplify, but also foster debate, thus nurturing a ‘marketplace of ideas’ and contributing to the refinement of knowledge.

[2] For a comprehensive consideration of definitions of the Rule of Law, see Bedner 2010.

[3] For further consideration of the international rule of law, see Chesterman, 2008.

[4] See also Dunoff and Trachtman 2009; Loughlin 2010; and Klabbers, Peters, and Ulfstein 2009.

[5] See Kim and Sharman, 2014 for an overview of Sociological Institutionalist and Constructivist theory, especially vis-à-vis norms of accountability; Kolb, 2012 for a discussion of the Sociological school of IL.

[6] See, for example, Wigglesworth (2008): 809.

[7] English School scholars such as Bull (1977) may also see merit in the rule of law as it demonstrates one of the institutions of international society, namely law.

[8] See, for example, Hoffmann 1966.

[9] See Aznar-Gómez 2002; Reisman 2002; Dupuy 2000 for discussion of deregulation.

[10] According to comments made during the IR464 Trip (2016), ”part of the hope for [ICTs] is to be educative – to make the general public aware of situations.”

[11] For example, Watson 2003 provides a consideration of the evolution of the ICTY.

[12] The Prosecutor v Duško Tadić [1999] IT-94-1-A.

[13] JCE was also employed in the ICTY in the more high-profile Milošević case. See Laughland 2008 from 228; The Prosecutor v. Slobodan Milošević, IT-02-54.

[14] The Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Ghao, SCSL-04-15.

[15] JCE was also accepted by the Appeals Chamber of the SCSL as a mode of liability in Prosecution v. Taylor, but “The Trial Chamber found that the Prosecution had failed to prove beyond a reasonable doubt that Taylor […] participated in a JCE” (King, 2013: 17) and the finding was not appealed. The Prosecutor v. Charles Ghankay Taylor, SCSL-03-01-T.

[16] For a critique of Joint Criminal Enterprise, see Simpson 2007: 119-120.

[17] “Actors” includes not only states, but also norm entrepreneurs such as individual activists and non-governmental organizations (Kim and Sharman, 2014: 440).

[18] For more on the Constructivist norm life cycle theory of human rights and anti-corruption norms see also Finnemore and Sikkink 1998; Sikkink 2011.

[19] Under the culture of accountability, actors are influenced by a “logic of appropriateness” (March and Olsen, 1989).

[20] R v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 3) AC 147; WLR 827.

[21] See Lutz and Reiger 2009 for more on the prosecution of political elites.

[22] Annex B of the Appeals Judgement of the Taylor case lists related authorities including the ICTR, ICTY, ICC, and other ICTs (The Prosecutor v. Charles Ghankay Taylor [2013] SCSL-03-01-A, 2013: 317-335).

[23] The Prosecutor v Charles Ghankay Taylor [2013] SCSL-03-01-A.

[24] In the original quote Aznar-Gómez is referring to sanctions committees, but the principle has been co-opted for use here.

[25] This argument is extended to the ICC, ostensibly a permanent court, on the grounds that, as one individual commented during the IR464 Trip (2016), “every trial [..] at the ICC is essentially an ad hoc one-court tribunal.”

[26] It is hoped that the rule of power concept may help to encourage discussion and/or research regarding the culture of impunity.

[27] This was the case, for example, with respect to Guantanamo Bay under the Bush Administration. The United States was aware that there was no ICT which could prosecute the alleged mistreatment of detainees and consequently felt secure in continuing its practices.

[28] The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09.

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