In Discussion with Professor Gerry Simpson: International Law and War Crimes

Vikram Kochhar
To start off, how would you say the concept of international criminal law came into existence?

Professor Gerry Simpson
It’s very new by the standards of the English legal system. It’s brand new. For most people it dates back to 1945-46 and the establishment of the Nuremberg, and the German, but also the Japanese, advances across the territories they invaded and most notably, in the German case, the Holocaust against the Jewish people in Europe. Those events provoked a sense that something must be done. There must be some form of legal retribution. So these two great trials took place and individuals were put on trial for crimes of aggression, crimes against humanity, genocide and war crimes. It was the first time that had ever happened, so it was a major moment.

VK
Do you think the world had learned after World War I that treaties and conventions like at the Paris Conferences weren’t enough?

GS
There was an attempt to strengthen the legal order, that’s for sure, after 1945. This whole business, in a way, though, does get going at an earlier point than Nuremberg and Tokyo, or at least perhaps an earlier failure, as you put it, to provoke the turn to international criminal law at Nuremberg and Tokyo. And that goes back to Versailles and in particular the sense that the First World War, the Great War in Europe, was a sort of unprecedented atrocity for European civilisation. In fact, it wasn’t really because Europe had had wars like this before, and not only that, they had of course exported precisely those forms of mass warfare to the global south. But in Europe there was a sense of dismay and in fact disorientation, and you might say cultural and political and moral demoralisation after the First World War, and there was an attempt to set up tribunals then in relation to charge and try the Kaiser and his associates for the Great War. That failed because he went to the Netherlands and the Dutch government refused to surrender him to the Allies.

But that was the earlier effort, and the League of Nations was a really rather brave and interesting experimental moment in human relations. But it takes place, or it’s created and established and begins to operate in the face of the rise of fascism, the Great Depression, the struggle between Bolshevism and Nazism, rising American power and American exceptionalism, British reluctance to give up its empire in any serious way, and similar feelings on the part of the Portuguese, the dutch and the french. So it was hard for the League of Nations really to achieve as much as it would have liked to, and so, looking back on that interwar period, the architects of the Nuremberg Tribunal thought they wanted to avoid those mistakes. But you’re absolutely right: they drew on the Pact of Paris in 1928, the Kellogg-Briand Pact. They drew on some early precursors of the League of Nations. So that was a very important period for many different reasons.

VK
In more of a pre-war context, do you think the law can play any meaningful role in preventing the escalation of conflict, or is it only something valued in hindsight?

GS
To be honest, I think law sometimes plays a part in prolonging and exacerbating war. It doesn’t have that kind of ameliorative effect in every case. Even post-war trials have an equivocal effect on global peace. So I think the image of international law is that it comes along after the event and prosecutes some people and isn’t very good at stopping war in the first place. So there is that image, but I think in some cases international law has a habit of prolonging war and preventing negotiation by encouraging states and peoples to think of international diplomacy in terms of legal rights and duties and imperatives and claims in a way that discourages a sort of meeting of minds in the diplomatic halls and so on.

We see a bit of that in Ukraine: it’s been understood as a crime of aggression committed by the Russian state against Ukraine and that’s a very legitimate way of thinking about it. But that also closes down certain possibilities, in particular a negotiated outcome, which would no doubt be unattractive to all sides but possibly better than an endless war of attrition in the heart of Europe.

VK

Would you not say that it these trials have a deterrent effect?

GS

That hasn’t really been proven in any way and I doubt that many people who are engaged in the work of international criminal law really believe it anymore. It’s hard to imagine world leaders or genocidal maniacs really consulting their own statute before launching an invasion or committing atrocities. It probably doesn’t work like that. With Vladimir Putin, when he invaded eastern Ukraine, I doubt that he had the Nuremberg war crimes trials on his mind, and I’m pretty sure that even if he is tried, it’s unlikely that the next round of irons will feel any different. I doubt that it has that sort of role to play. I mean, the sort of role it may play is, in a way, to express our values or the values that we think should dominate in international relations.

VK
So as a general rule of thumb you would say it doesn’t really have that much of a precedential impact?

GS
It doesn’t have that much of a deterrent impact. It does create precedence, though. The precedent is that the crime of aggression is illegal and a crime, and that’s a precedent that was established at Nuremberg and Tokyo and can now be applied to a certain extent in contemporary warfare. So it does create legal precedence. It’s just that it’s unclear what the effects of those precedents might be.

VK
In terms of the shape and structure of war itself, why do you think there exist principles like protected personnel in a scenario where morality and ethics seem to be neglected?

GS

In the 20th century there has been a great push towards what you might call a legal moralistic view of war, or legal moralism as a form of language and discourse in relation to war. So the sense that war can be talked about in these terms is a relatively new thing. We tended to think about war in the 19th century in strategic or nationalistic terms, and though those terms are still around and still abound, there’s also been this competing idea, competing language talk around war, which is more, as I say, legal, retributive, juridical and moral, a kind of ethics, legal ethics of war, and that’s been transmitted through the laws of ethics, legal ethics of war, and that’s been transmitted through the laws of war, for example, that protect, as you say, people like cameramen, hospitals and so on are designed to protect those places, which is partly, at least, why there was so much outrage when it was discovered that the Israeli Defence Forces were attacking and targeting hospitals, claiming that Hamas was somehow harbouring its weapons and militants within those hospitals. It’s unclear whether that’s the case. There doesn’t seem to be much evidence of these tunnels that we’ve been promised. So, it’s quite a powerful idea, and in some ways there have been wars in which that idea has been respected. The enemies have understood each other to have certain rights. That idea itself is under a fair bit of pressure at the moment, though.

VK
So you mentioned this idea of a moralistic approach to war- in the recent years or decades, why do you think that has become an increasingly popular approach?

GS
It’s a good question. Why have we made this turn to law and war? Part of it is that we are increasingly of the view in modern, post-industrial societies that law or legal rules can be a solution to social and moral problems. So that’s been a trend in late modernity to think about legal rules or legalism, and Judith Sklar, the American political philosopher, called legalism a choice. It’s not an inevitability, it’s a choice. The choice to deal with certain things through law is very, very powerful. And accompanying that, in more recent times we’ve taken a very retributive view of social problems. We tend to think that they should be eliminated and that their elimination ought to be accompanied by some sort of prosecution of someone, of someone. So the sense is that the global financial crisis should have led to the prosecution and criminalisation of hedge fund managers, or the Horizon disaster, where the post officer should lead to the prosecutor. There’s a strong belief in that kind of retributive legalism at the moment. So that’s one reason, but I think also, in a way, moralism has been taken up for what I call in a recent book, sentimental reasons. People seem very comfortable with a series set of moral absolutes that they then apply to social and political life in ways that can be both redemptive but also damaging both redemptive but also damaging, would you say.

VK
Would you say that taking a moral approach with war (i.e. trying to reduce fatalities to the largest extent) can actually be economical for both sides?

GS
I mean more a sort of morality of good and evil than a morality of universal rules. What’s happened really is that, though that first idea, the idea that you apply moral standards to war in order to humanise those wars or make them more palatable or humane, that’s given way to a different sort of moralism, the moralism of describing our enemies as criminals rather than enemies. So I guess there are two different forms of morality or moralism operating in relation to war today, and I guess the you know, the conjunction or relationship between those two is quite an interesting subject.

VK
On a more jurisprudential level, obviously one of the most vital pillars in the construction of any law is enforcement, but international bodies like the UN don’t have a military to carry out anything of the sort. So to what extent can international laws, laws that every country must theoretically abide by, really be upheld in the absence of any concrete enforcement?

GS

I guess there are two answers to that question. One is to de-emphasise the role enforcement plays in the upholding of the law in the first place, so that we encounter the police. If we’re fortunate, as many of us are, really on vanishingly few occasions throughout our lives, we don’t really feel the force of the law. I’ve never appeared in court as a defendant. I’ve been approached by police officers a couple of times, usually on the roads, but I don’t encounter the law much and yet I comply with it most of the time and I think most people do as well have that experience, or many people do not all. Of course there are, many particular minority groups that have been very badly treated by the police over the years.

But on the whole we we have an experience of law that doesn’t involve enforcement, and maybe it’s not quite right to think of international or any law through the lens of enforcement. It’s better to think of it as a system of thought, a kind of ideology or a system of persuasion that will either be compelling, or it won’t be, to a population or a group of states. So I think international law works a bit like that.

But secondly, I don’t know if we really want international law to be enforced by an international police force, we would immediately encounter the problem of deciding who should be in this police force, and you know what sort of norms they should be enforcing and how much violence they should use to enforce them, and who would be giving the orders. And as soon as we start to think about those questions, we enter the zone of deep disagreement. So it’s not clear that enforcement through policing or enforcement through war is more than a sort of fantasy that we have about law.

VK
And in a modern sense, thus far, how effective have international laws as a whole proven to be?

GS
Well, I think international law in its broadest sense, pretty much organises everything we do. So if we take international economic law, international commercial law, public international law, then a lot of what goes on in the world, from eating a Mars bar to flying to Australia, is regulated and facilitated by international legal rules. Not to mention that almost everything that goes on diplomatically is organised around international legal rules that are observed almost 100% of the time. We only notice the breach of diplomatic rules. We only notice these diplomatic rules when they’re breached, when the Saudis killed Khashoggi, for example, in the Turkish embassy, or the Israelis attacked the Iranian diplomats in their Syrian compound. So we notice these moments because they are so egregious and so unusual, but on the whole, the legal roles get observed a lot of the time. I mean, I’ve just flown from Australia through Dubai, across the Middle East, to Britain, relatively unencumbered and molested by these states that I fly over, and that’s partly because of the operation of the Chicago Convention. So you know, international law is very effective in lots of ways, but it’s relatively weak when it comes to stopping the Israelis in Gaza or preventing Hamas from attacking Israelis in the south of Israel, whatever situation you want to look at it’s not very good at that kind of thing, but then it’s never been very good at dealing with social breakdown.

It only works when there’s a relative degree of social cohesion.

VK
So international law as a mechanism for mediating conflict isn’t really effective, but guaranteeing a sense of peace beforehand it’s more useful?

GS
Yes absolutely, I think it’s better at that.

VK
That’s a very interesting notion, and I would agree that, whilst many see international law as a very specific topic only relevant to tension and conflict, it has an impact on all of our lives on an everyday basis even beyond our knowledge. Thank you very much for your time.

In light of recent events surrounding the Russian invasion of Ukraine and the Israel-Gaza crisis, international law and the concept of war crimes have become increasingly important topics to discuss. Professor Gerry Simpson, one of the most esteemed professionals in the field of Public International Law, shares his views and insights on a variety of relevant subjects in this interview with Vikram Kochhar. The following text has been transcribed from the original discussion, which will soon be available on listening platforms...