[2.4.] Natural Law Theory vs. Legal Positivism: War Crimes.

 

A brief review… the five sources of international law are:

1.       treaties

2.       custom (i.e., traditional practices which have been “internalized” and accepted as law by the nations that follow them)

3.       legal doctrines common among civilized states

4.       rulings and reports from international judicial bodies and commissions

5.      jus cogens principles

 

What justification (if any) do legal positivism and natural law theory offer to international law and international legal institutions?

 

 

[2.4.1.] International Courts.

 

The ICJ (International Court of Justice – see lecture notes for Jan. 28, section 1.7.2.) does not have jurisdiction over individuals.

 

The recently established ICC (International Criminal Court)[1] does have jurisdiction over individuals, for genocide, war crimes and crimes against humanity.

·         Established by the Rome Treaty in 1998.

·         The chief prosecutor is currently Luis Moreno-Ocampo, an Argentinian.

·         As of this date, he has opened investigations into three cases, all from Africa: the Democratic Republic of Congo; Darfur, Sudan; the Republic of Uganda.

·         As of January 2007, 104 countries have ratified the Rome Treaty and are thus States Parties to the ICC.[2] Another 35 countries have signed the Treaty, obligating them not to do anything to undermine the Court without placing their own citizens within its jurisdiction.[3]

·         The United States and Israel have not ratified the treaties, and, after having signed the Rome Treaty, has expressed that they have no obligations towards the Court stemming from that signature, which might be taken to mean that they do not believe themselves to have even those minimal obligations which are supposed to come from signing it.

 

 

[2.4.2.] Legal Positivist Challenges.

 

Legal positivism poses several important challenges to the view that the ICC and the ICJ constitute genuinely legal institutions:

 

1)      It is unclear how these international courts can enforce their rulings. From Austin’s point of view, their rulings are not legally binding: there is no international “sovereign” to back up the rulings of these institutions with sanctions.

 

2)      There is no substantial basis of positive law on which these international tribunals can rely. Legitimate courts operating within a given state rely to a great degree upon the laws passed by legislative bodies within that state. There is no international entity analogous to such a legislative body upon which these international courts can rely. “Legitimate courts operating within a state apply and interpret laws passed by legislatures, but international tribunals do not have analogous legislative bodies. The military character and Allied composition of the Nuremberg and Tokyo tribunals gave some support to the charge of ‘victor’s justice.’” (p.81, emphasis added)

 

3)      The authority of these courts is questionable. E.g., recall Hart’s distinction of primary and secondary rules. There seem to be, in international law, no secondary rules, and in particular no rules of recognition or rules of adjudication.

 

 

[2.4.3] The Nuremberg Trials and Fuller’s Natural Law Theory.

 

According to Simon, “[i]nternational criminal courts do not appear to fare well within a proceduralist version of natural law,” such as Fuller’s. (p.81)

 

The charter that created the International Military Tribunal, which was responsible for the Nuremberg Trials, established as crimes:

·         crimes against peace

·         war crimes

·         crimes against humanity.

(see Simon, p.81)

 

The individuals who were prosecuted committed the relevant crimes before the creation of the Tribunal, and so before their actions violated positive law.

 

This seems to violate the spirit of Fuller’s third principle, that retro-active applications of law should be minimized. (It does not seem to violate the letter of that principle, however, since the principle says only that such applications such be minimized and not that they should be absolutely prohibited.)

 

Robert Jackson (prosecutor for the Allies at the Nuremberg trials) argued that Nazi war criminals should be tried and punished, not simply because of violations of positive law, but also because of  the immorality of their actions:

 

The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. …

                When I say that we do not ask for conviction unless we prove crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong. (Jackson, in Simon p.91)

 

The refuge of the defendants can be only their hope that International Law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law. (Jackson, in Simon p.92)

 

 

[2.4.4.] Hart vs. Radbruch on Legal Positivism.

 

Gustav Radbruch was a German who, after WWII, attributed German subservience to Nazi law to legal positivism. Many Germans held that “law is law,” and a law is a valid law even if morally terrible. On Radbruch’s view, this is why many Germans were willing to comply with Nazi legislation.

 

His considered reflections led him to the doctrine that the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system, could  be valid if it contravened basic principles of morality. (94)

 

Radbruch’s point raises the second question over which LP and NLT differ. Recall that the question is: what is the source of law’s normativity? In other words, why does the fact that a principle is a law give us a (prima facie, non-absolute) reason to obey it?

·         NLT answers: the obligation to obey the law is moral obligation (since principles are laws only if they are moral).

·         LP answers: the obligation to obey the law is something other than moral obligation. Radbruch’s point might be put as follows: answering the question in this way leaves room for someone to say that she has a reason (or an obligation, or a duty) to obey a law, even if that law is morally awful.

 

Hart defends LP against this criticism. On an accurate understanding of LP, law is law, even if it is morally terrible, and it’s being morally terrible does not undermine its status as law. But this does not mean that one is obligated to obey it, no matter what. In other words, legal obligation is always prima facie and never absolute. A principle can count as a valid law, and yet be morally horrible; and if it’s morally horrible, then one has no obligation, moral or non-moral, to obey it.

 

This raises the question: exactly what do LPists mean when they say that a given principle or rule is a “valid” or “genuine” law?

 

Hart’s defense indicates that they don’t mean that we are always obligated to obey it. If they simply mean that it is still considered law by the relevant legislative and executive bodies, then it’s not clear why this is an interesting claim, or why natural law theorists would object to it.

 

John Finnis, a contemporary philosopher of law (professor of law at the University of Notre Dame and at Oxford University) and natural law theorist, has argued that there really is nothing at stake between legal positivism and natural law theory. His view is that, understood correctly, there is nothing in legal positivism with which natural law theory disagrees. The difference between the theories is only that legal positivism is incomplete: it fails to address the question about the normativity of law that natural law theory tackles head-on.[4]

 

 

Stopping point for Wednesday February 21. For next time, read pp.102-107, on legal formalism.