1. Introduction
This article is about a relatively new version of the ‘emerging’ jus post bellum concept.Footnote 1 It asks whether the jus post bellum as ‘integrity’ is useful as a normative guide in the interpretation of international criminal law during transitions – when the requirements of international criminal law are ambiguous.Footnote 2 If a Dworkinian approach is useful, then this version of the jus post bellum concept might warrant further exploration. It may be possible, for example, to think about the principle of integrity in relation to other aspects of the jus post bellum beyond transitional criminal justice (i.e., security arrangements, political power-sharing, reparations, disarmament, demobilization, and reintegration, etc.). Further, in adopting a Dworkinian approach to this specific issue, the article hopes to add to recent scholarly discussions about the benefits and drawbacks of interpretivism in international law.Footnote 3
The remainder of this introduction supports the project of this article in turning to consider a Dworkinian approach in matters ‘beyond the state’.Footnote 4 Section 2 develops the main elements of the jus post bellum as integrity as an analytical framework. Section 3 introduces the alternative sentences regime in post-conflict Colombia and explains how and why this may be a problem from the perspective of international criminal law and the International Criminal Court (ICC). Section 4 introduces and evaluates a major challenge to the jus post bellum as integrity framework regarding the way ‘law as integrity’ conceptualizes the political community. Section 5 summarizes and concludes before making some brief comments that help to situate the jus post bellum as integrity in international legal theory.
1.1 Dworkin and international law
Integrity was developed by Dworkin as a theory that rebutted the conclusions of positivism on the nature of law and legal reasoning in the Anglo-American context.Footnote 5 Why and how, therefore, might the principle of integrity be relevant for the actors concerned with identifying the requirements of international criminal law in post-conflict societies? Can Dworkin’s theory even sensibly be applied to ‘international’ law?
Firstly, the origin of ‘law as integrity’ in Anglo-American legal theory is not enough to discount its relevance for international lawyers. Almost every methodological approach to international law has emerged first in the legal and political philosophy of particular domestic legal communities before ‘rising up’ to influence thinking about the law of international society. Today, for example, the current dominant way of thinking about international law is best understood as a version of Hartian positivism, i.e., international law is thought of as a system of primary and secondary rules.Footnote 6 Hart, like Dworkin, worked specifically within a common law tradition. Therefore, the Anglo-American origins of ‘law as integrity’ should not be accepted as a prima facie bar to its usefulness in legal matters beyond the state. Of course, the Dworkinian analytical framework may need to be adapted so that it better fits the interpretive problems of international law. Further, the normative aspects of law as integrity will need to consider that the international community is made up of states with a more disparate range of political and moral values.Footnote 7
Secondly, Dworkin’s legal theory is multifaceted and wide-ranging. It is true that not everything Dworkin wrote is necessarily relevant to the international legal order. However, it is also not the case that all of Dworkin’s theory must be relevant to the international legal order before any of it is considered useful. Thus, this article only evaluates the concept of integrity insofar as it provides normative guidance when ‘the law books are silent or unclear or ambiguous’.Footnote 8 In this respect, the understanding of international law as a system of primary and secondary rules results in a limited legal order. This legal order gives rise to many interpretive issues and the issue of possible ‘gaps’ in legal regulation. It is worth exploring, therefore, whether the political principle of integrity provides any useful guidance. It is not prima facie desirable for a number of different interpretations of international criminal law to be ‘available’ as this may weaken the overall system as a whole.
Thirdly, it is true that there may be difficulties of ‘fit’ between integrity and international law in general. These are explored in Section 4 below. However, most contributors agree that the jus post bellum is not a fully-fledged legal order that compares with the jus ad bellum and the jus in bello. It is an ‘emerging’ normative order that straddles the moral and legal requirements of international law during transitions. The theory of law as integrity suggests a unique approach to the relationship between law and morals. Dworkin famously argued that law as integrity is about interpreting contemporary legal practice ‘as an unfolding political narrative’.Footnote 9 This article explores, therefore, whether integrity is useful in constructing this emerging normative order. If so, this order may be useful for post-conflict actors in terms of suggesting what post-conflict law ought to be in relation to specific questions.
Fourth, there is precedent for the adoption of interpretivism in international law. Dworkin’s method, known as ‘constructive interpretation’, is similar to the methodology adopted by one of the most highly respected international lawyers, Hersch Lauterpacht.Footnote 10 Each rejected the traditional positivist account of international law that rests on the view that law depends simply on the consent of states.
Fifth, there have been a variety of different kinds of responses to post-conflict justice and post-conflict law. It may be wondered whether the patchwork of responses can be said to represent any truly international law, emerging or otherwise. Integrity, insofar as it is about legal reasoning and coherence, may be useful in terms of pulling these disparate law and policy responses together into a principled approach.Footnote 11 Dworkin argued that if legal actors understand themselves as acting in a community of principle they can ‘strive to improve [their] institutions in that direction’.Footnote 12 Similarly, Schwartz asserts that this is possible even in divided societies.Footnote 13 This depends on ‘public interpreters’ focusing on the ‘expressive value’ of integrity rather than its capacity to ‘generate right answers’.Footnote 14 These claims will be tested in relation to the specific issue of post-conflict amnesties and ‘alternative sentences’ for international crimes.
Only the strictest international legal positivists would deny that there is any point in pursuing this exploratory agenda. Even then, there is no problem in accepting that the jus post bellum as integrity identifies the ‘emerging’ norms of post-conflict law as a first step towards the identification of ‘hard’ legal rules. If the norms can be clarified, explained and justified according to a coherent political philosophy, so much the better.
To summarise, this article does not claim that Dworkin’s theory ought to replace international legal positivism and the ‘traditional’ approach to interpretation in international law.Footnote 15 Neither does it claim that all post-conflict societies ought to deal with atrocities in the same way. It does, however, explore the benefits and drawbacks of the concept of integrity in identifying the principles of post-conflict law – the jus post bellum – insofar as these deal with transitional criminal justice. These principles are then relied upon to resolve a specific issue facing the ICC. It is not altogether clear what the Rome Statute requires from societies that are attempting to transition from non-international armed conflict to peace. This is especially the case regarding the relationship between post-conflict amnesties and the overarching prerogative to investigate, prosecute and punish perpetrators of international crimes.
The next section explains the problem of amnesties after non-international armed conflict with a special focus on Colombia.
2. Dealing with past atrocities: Colombia and amnesty
Societies attempting to transition from non-international armed conflict to peace face a number of difficult legal challenges.Footnote 16 One of these relates to dealing with atrocities committed during the conflict by state and non-state actors.Footnote 17 On the one hand, there is a ‘trend towards an expanding notion of individual criminal responsibility’ in international law.Footnote 18 As the Nuremberg IMT famously decided, ‘crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced….Footnote 19 On the other hand, the prospect of criminal prosecution and incarceration is unlikely to encourage combatants to lay down their weapons.Footnote 20 After non-international armed conflicts where there is no overall ‘winner’, it may be very difficult to ‘deal with atrocities’ in a way that might, at first, appear most desirable or appropriate (criminal trials that lead to incarceration).Footnote 21
In these circumstances, the mainstream view has been to call for ‘a more flexible approach’ to accountability, so that post-conflict states may implement ‘a more sophisticated justice package, going beyond mere criminal justice’.Footnote 22 However, it is not clear when ‘flexibility’ and ‘sophistication’ in punishing those responsible for the commission of international crimes may become a violation of a state’s international legal obligations. It may be that sophisticated transitional justice mechanisms only serve to create an ‘illusory’ criminal justice that serves to weaken the system as a whole. The next section explores the problem of post-conflict amnesties from the perspective of Colombia’s recent peace deal with the Fuerzas Armadas Revolucionarias de Colombia – Ejercito Popular (FARC-EP).Footnote 23
2.1 Colombia and transitional justice
Most people are aware that, for many decades, Colombians have suffered the consequences of a long and protracted non-international armed conflict involving a number of state and non-state armed actors. At the time of writing, out of a total population of 48 million, there are almost 9 million registered victims of the armed conflict (most of these being victims of forced displacement).Footnote 24 The Colombian government has made several attempts to end the conflict. These have produced a number of different transitional justice ‘deals’. The first is the Justice and Peace Law (Law 975 of 2005) aimed at the demobilization of the various paramilitary armies operating outside of the law.Footnote 25 The second is the ‘Legal Framework for Peace’ established in 2012, which entailed a reform of Colombian constitutional law that introduced the idea of transitional justice into the heart of the Constitution of Colombia.Footnote 26 The third is the recent ‘Final Peace Agreement’ between the Colombian government and the opposition FARC-EP.Footnote 27 The transitional justice legal framework adopted here forms the basis of this case-study.
2.2 Colombia and the Comprehensive System for Truth, Justice, Reparation and Non-Repetition
The fifth component of the Final Agreement is known as the ‘Comprehensive System for Truth, Justice, Reparation and Non-Repetition’ (hereafter the Comprehensive System).Footnote 28 It contemplates the creation of a number of separate but ‘integrated’ mechanisms to ensure truth, justice, reparation, and non-repetition. These include: a Truth, Reconciliation and Non-Repetition Commission; a Special Search Unit for Conflict-Related Disappeared Persons; the Special Jurisdiction for Peace (SJP); and a range of specific measures on reparations. Footnote 29 The Comprehensive System is based on the fundamental idea that the different mechanisms cannot and should not be evaluated in isolation from one another.Footnote 30 By urging that all the components are taken together, the negotiating parties were keen to ensure that post-conflict accountability is understood as a broad and multifaceted exercise that is not limited to post-conflict incarceration. Nevertheless, the ‘punishment’ for international crimes is a matter for the SJP which was created with the specific role to ‘administer justice and investigate, clarify, prosecute and punish serious human rights violations and serious infringements of international humanitarian law’.Footnote 31
2.2.1 Punishment at the Special Jurisdiction for Peace
The SJP has been created to consider the criminal justice aspects of the atrocities committed by all sides during the armed conflict.Footnote 32 The peace agreement is unequivocal that ‘[t]here are crimes which are not capable of attracting amnesties or pardons’.Footnote 33 The relevant crimes, sometimes called ‘core’ international crimes, are those which have been criminalized directly as a matter of international law since the Nuremberg and Tokyo IMTs. These include: crimes against humanity, genocide, war crimes, the taking of hostages or other serious deprivations of liberty, torture, extrajudicial executions, forced disappearance, rape and other forms of sexual violence, child abduction, forced displacement, and the recruitment of minors.Footnote 34 Yet, although these crimes are incapable of attracting amnesties, they are subject to an alternative sentences regime which confers a limited amnesty on certain individuals upon the acceptance of certain conditions.
According to the peace agreement, the alternative sentences ‘in no case shall be understood as jail or prison, nor … equivalent forms of detention’.Footnote 35 Instead, in relation to ‘certain very serious offences’, the sanctions imposed on those who ‘acknowledge truth and responsibility’, will be of ‘a minimum duration of five years and a maximum of eight’.Footnote 36 In relation to ‘those who did not play a decisive role in the most serious and representative conduct’ the ‘minimum sanction will be two years and the maximum five’.Footnote 37 It should be noted that in situations where ‘there is no acknowledgement of truth and responsibility’, the SJP is capable of handing down ‘ordinary sanctions’ which are provided for in Colombian criminal legislation. In these cases, the ‘actual deprivation of liberty will be no less than 15 years and no more than 20’.Footnote 38 These sentences are still far more lenient than those that would normally be handed down for the kinds of crimes involved.
The sanctions will include ‘the necessary effective restrictions on freedoms and rights for their implementation, such as freedom of residency and movement …’.Footnote 39 Further, ‘[e]ffective restriction requires suitable monitoring and supervision mechanisms’ to ensure ‘compliance with the restrictions ordered by the Tribunal’.Footnote 40 The SJP is supposed to ‘establish the conditions for any effective restriction of freedom that may be necessary to ensure fulfilment of the sanction’, although, as mentioned, these restrictions cannot be understood as incarceration.Footnote 41
It is not immediately clear what the alternative sentences will look like and how the ‘monitoring’ aspects will be fulfilled. However, this is not of only theoretical interest. Colombia has been under preliminary examination by the Office of the Prosecutor (OTP) at the ICC since 2004.Footnote 42 In December 2017, the OTP set out four areas where it was concerned that the SJP would ‘raise issues of consistency or compatibility with customary international law and the Rome Statute’.Footnote 43 One of these areas was the implementation of sentences involving ‘effective restrictions of freedom and rights’, i.e., the provisions on alternative sentences in the peace agreement and the amnesty law.Footnote 44 Its most recent Report refers to a recent decision of the Constitutional Court of Colombia (CCC) on this issue. The CCC has said that the SJP must:
… determine whether the sanctions are compatible with a genuine attempt to bring the convicted person to justice, taking into consideration the proportionality of the sanction in relation to the gravity of the crime, the degree of responsibility of the perpetrator, and the type and degree of restriction on liberty.Footnote 45
It might be surmised, therefore, that according to the CCC, there is a hypothetical minimum level of retribution that must be present in the ‘alternative sentences’ in order for the SJP to be ‘constitutional’ as a matter of Colombian domestic law. The same might be said in relation to Colombia’s international legal obligations under the Rome Statute. At this stage, the SJP has not had the opportunity to sentence any of the convicted perpetrators that have submitted to its jurisdiction. Further, the OTP has said that it will ‘continue assessing the genuineness of the proceedings carried out’ in Colombia’s transitional justice system.Footnote 46 The work of the SJP has only recently begun. It is only after the first convictions that we will know more about how these restrictions on liberty will be interpreted, implemented, and monitored. The danger is that the restrictions of liberty are illusory and that the monitoring is lax. What is clear, however, is that the SJP cannot sentence individuals that admit to having committed international crimes to any period of imprisonment. How should international criminal lawyers respond to these kinds of developments? How should the OTP? Is it possible for a state to be committed to the fight against impunity while eschewing a model of justice that equates punishment with incarceration?
3. The jus post bellum as integrity: An analytical framework
The alternative sentences regime, and the lack of clarity around the issue as a matter of international criminal law, is used for the purposes of evaluating the jus post bellum as integrity. This section introduces a way of understanding the issue of post-conflict amnesties in Colombia that draws from Dworkin’s legal theory and the principle of integrity. For present purposes, the relevant interpreter will be the OTP, charged, as it is, with deciding whether the Colombian arrangements are acceptable vis-à-vis Colombia’s obligations under the Rome Statute. However, in principle, this framework might be developed and adopted by other post-conflict actors in relation to other issues.
In analytical terms, Dworkin argued that there were three relevant stages to ‘law as integrity’. At the pre-interpretive stage, the very practice which calls to be interpreted must be identified. Interpreters identify the ‘raw data’ which must be interpreted. This is all that is really required at the pre-interpretive stage. For present purposes, the OTP has already indicated that the ‘raw data’ to be interpreted is (i) the Rome Statute, and (ii) customary international law. However, the exercise here focuses only on the Rome Statute. State practice in relation to amnesties is not consistent. The law remains very much in flux. Many states have passed amnesty laws for international crimes. For example, Spain’s 1977 Amnesty Law provides for a blanket amnesty that continues to shield individual perpetrators from responsibility for atrocities committed during Franco’s regime.Footnote 47 The Mozambique Amnesty Law 15/92 of 14 October 1992 also failed to contain any accountability mechanisms for dealing with the atrocities committed by both sides during the conflict.Footnote 48 Finally, the peace process in El Salvador included a National Reconciliation Law that provided an amnesty law that made it virtually impossible to bring perpetrators of international crimes and human rights violations to justice.Footnote 49
On the other hand, amnesties for international crimes have, on occasion, been set aside.Footnote 50 A customary law prohibition may be emerging, but it would be premature and unwise to reject the legality of any and all amnesties. As Christine Bell has argued, there is a ‘largely undefined’ middle ground that is ‘constantly shifting as the predominance of one or other poles asserts itself and is contested’.Footnote 51 The position may be different, however, for a state party to the ICC, such as Colombia, in that it has accepted a more specific set of rules in relation to international criminal justice. Thus, the question for the OTP ought to focus on whether the Colombian transitional justice arrangements comply with the Rome Statute.
At the second ‘interpretive’ stage, Dworkin introduces the idea of ‘fit’. At this stage, several interpretations of the law may be possible. ‘Fit’ is a question of how well an interpretation is coherent with what has come before, i.e., the history of the legal practice. As Dworkin argued, the facts of legal history limit the role of any judge’s personal convictions of justice in decisions-making.Footnote 52 However, interpreters select (and ought to select) that interpretation which best fits the previous history practice. The idea of integrity emerges here because those interpretations which best fit the previous practice are considered prima facie more desirable.
At the post-interpretive stage, Dworkin introduces the idea of ‘justification’ or ‘substance’. Justification is a question of how desirable an interpretation is in view of the principles of the particular political community. In this respect, any interpretation of the law must be justified according to some standards external to the law. These are drawn from a certain political morality that is reflected in the ‘community personified’.Footnote 53 For Dworkin, to interpret law meant to engage in a ‘moral reading’ of legal texts.Footnote 54 The law at any given time is the best it can be consistent with the legal materials from which it must be interpreted and the political morality of the relevant community. In relation to post-conflict law, the interpreter appears to have to justify two orders (i) domestic, and (ii) international. This is owing to the fact that post-conflict law straddles the domestic and international legal orders. Thus, the principles chosen as the best explanation and justification for the relevant interpretation must ‘do’ integrity ‘downwards’ and ‘upwards’.
How do these three analytical steps function in relation to the problem facing the OTP? As is well known, the Rome Statute is silent on amnesties.Footnote 55 How, then, is the OTP to discover the ‘raw data’ of the practice and interpret this so as to explain and justify that very practice? Firstly, the jus post bellum as integrity urges the OTP to recognize an ‘emerging’ body of law – the jus post bellum which goes beyond the specific rules as agreed between the ICC states. Secondly, it asks the OTP to rely on the principles of this body of law in deciding whether the Colombian arrangements comply with the Rome Statute. For example, it is true that the Rome Statute contains no specific reference to national amnesty laws. At the drafting stage, states decided to leave the issue of national amnesty laws to one side because their inclusion proved too controversial.Footnote 56 This does not mean, however, that the Rome Statute can be set to one side as ‘silent’ on the matter. The principles that best explain the ICC regime as a whole appear to suggest that amnesties for international crimes are not compatible with the Court’s mandate. The Preamble asserts that ‘the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured …’.Footnote 57 Further, it asserts that the states parties to the Statute are ‘determined to put an end to impunity for the perpetrators of [international crimes] …’ and to contribute to their prevention. Yet, the OTP must consider how ‘punishment for international crimes’ should be understood in post-conflict societies. To the extent that the ICC regime is based on a coherent set of principles, the OTP must use these to evaluate the problem of Colombia’s alternative sentences. Further, on a Dworkinian reading of international criminal law, the best explanation and justification of the interpretation chosen must also explain and justify post-conflict law in Colombia and the international legal order as a whole.
3.1 The jus post bellum as integrity and the Rome Statute
According to Robinson, the drafters of the Rome Statute included a number of ways for the ICC to defer to national arrangements such as Colombia’s SJP and the alternative sentences arrangements. These are found in Articles 16, 17, and 53 of the Rome Statute. A Dworkinian approach may also assert that these rules are supported by principles that explain and justify their inclusion. These principles are; (i) the principle of peace, and (ii) the principle of local ownership. Further, these principles may be linked to an explanation of the legitimacy of the international legal order and Colombian post-conflict law.
3.1.1 Peace as a principle of the Rome Statute
The principle of peace may be said to explain and justify the inclusion of Articles 16 and 53 in the Rome Statute. This principle can also be used to explain and justify post-conflict law in Colombia. Moreover, the international legal order is often thought of as necessary for peace, coexistence and co-operation.Footnote 58
Article 16 creates an obstacle to the commencement of ICC investigations and prosecutions when the ‘Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect …’.Footnote 59 The rationale for this provision relates to the Security Council’s supervening responsibility for the maintenance of international peace and security. In this respect, the Article proposes to block ICC interventions when this would interfere with Security Council efforts to restore peace and security. It is unlikely, at this stage, that the Security Council will declare the Colombian situation a threat to international peace and security. However, Article 16 is supported by the principle that the pursuit of criminal justice should not disturb the benefits of a hard-won peace. After all, the ICC system does not exist outside the general framework of international law that functions to organize international society since 1945. Rather, a Dworkinian approach suggests that the rules of the ICC Statute have to be interpreted in a way that best explain and justify the existence of the broader international legal order.
Article 53 asserts that the Prosecutor may refrain from initiating an investigation when there are ‘substantial reasons to believe that an investigation would not serve the interests of justice’.Footnote 60 Importantly, this Article only comes into play if ‘the case is or would be admissible under article 17’.Footnote 61 However, there is no further indication in the Statute of what ‘substantial reasons’ might count for the purposes of triggering Article 53. The descent of a country back into prolonged armed conflict is, of course, a very good substantial reason. In the word of an anonymous contributor to Human Rights Quarterly,
Accusation … comes more easily than making peace. The quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that it makes today’s living the dead of tomorrow … Thousands of people are dead who should have been alive—because moralists were in quest of the perfect peace. Unfortunately, a perfect peace can rarely be attained in the aftermath of bloody conflict. The pursuit of criminals is one thing. Making peace is another.Footnote 62
The drafters of the Rome Statute were aware that there would be situations into which the ICC (and the OTP more specifically) should be wary of intervening. In these cases, as in Colombia, the negotiators may not have envisaged that a ‘preliminary examination’ would go on (seemingly) indefinitely. However, it is not really possible to know before initiating a preliminary examination how long a state will need before it is stable enough to withstand the intrusion of an ICC investigation and the issuing of arrest warrants. Thus, whether or not this is desirable, the inclusion of these articles demonstrate that the principle of peace is part and parcel of the ICC Statute and the purpose and function of international criminal justice.
From a Dworkinian perspective, the principle of peace could also explain and justify post-conflict law in Colombia and the alternative sentences regime. The Peace Agreement may, after all, be taken as the signal that Colombia intends to construct a ‘community of principle’ and move away from internal armed conflict and towards political debate. This may be taken as a sign that it endorses the principle of peace. It might be argued that the Peace Agreement is a break with the past; that it represents a commitment to compromise. That it is a commitment to working through political differences according to a scheme of coherent rules and principles. The Peace Agreement, on a Dworkinian reading, could be the blueprint for the future development of the new political community. The ‘Introduction’ to the Peace Agreement declares that the agreement aims to ‘open a new chapter’ in Colombia’s history.Footnote 63 It invites ‘all parties, social and political movements and all live forces in the country’ to agree to a ‘National Political Agreement’ which is tasked with implementing peace in Colombia.Footnote 64 This principle also ‘fits’ other rules in domestic law. After all, it is reflected in certain provisions of the Colombian Constitution. Article 22 of the Constitution sets out the following rule: ‘Peace is a right and a duty with which compliance is mandatory’.Footnote 65 Finally, Article 95(6) of the Constitution states that every citizen must ‘strive toward achieving and maintaining peace’.Footnote 66 Thus, it is possible to reach a general moral reading of this area of the law: that the principle of peace best explains and justifies the Rome Statute complementarity regime and the Colombian post-conflict legal order. This conclusion may also be coherent with the best explanation and justification for the international legal order as a whole. The UN Charter sets out the purposes of the organization which are to ‘maintain international peace and security’.Footnote 67 Article 4 of the Charter asserts that membership is open to ‘peace-loving’ states. Thus, according to the jus post bellum as integrity, the OTP might conclude that the Peace Agreement, the Constitution of Colombia and the UN Charter are all best explained and justified by an overarching principle of peace.
3.1.2 Local ownership as a principle of the Rome Statute
Article 17 is the basic rule that underpins the ICC complementarity regime. It is the foundation for the relationship between the ICC and the states parties. Subsection (1)(a) provides that the ICC will only commence an investigation where a state party is ‘unwilling or unable genuinely to carry out’ the relevant investigation.Footnote 68 In this respect, the ICC’s attitude to the Colombian regime of alternative sentences raises certain questions.
Firstly, investigations into specific situations are underway.Footnote 69 As explained, individuals, in order to benefit from the regime of alternative sentences, must come forward and admit with open hands to the atrocities perpetrated. They have ongoing responsibilities in terms of aiding any ongoing investigations, either related to the Truth Commission which is functioning in parallel or the Special Search Unit for the Disappeared. Further, in December 2018, the OTP reported that the Colombian authorities were carrying out a number of national level investigations into a number of events which fall within the prima facie jurisdiction of the OTP.Footnote 70 Insofar as the Colombian authorities are ‘investigating’ a number of situations, the OTP appears happy to sit back and refrain from requesting authorization to proceed to a formal investigation.
Article 17(2)(a) declares that unwillingness is to be understood in a way that includes those cases where ‘the national decision was made for the purposes of shielding the person concerned from criminal responsibility’. This is more complicated. On one view, criminal responsibility requires incarceration and it cannot be removed from the consequences of participating in the commission of international crimes. Although there are many voices in Colombia who argue in this vein, it is not objectively apparent that those individuals that must come forward and confess to the crimes are being ‘shielded’ from criminal responsibility. As the CCC judgment made clear, the issue is rather about the quality of the responsibility and the punishment. It is supposed to be ongoing and comprehensive and it should also be integrated into other post-conflict accountability mechanisms.
Article 17 suggests that the ICC regime is founded on the principle of local ownership. It is for Colombians, not the international community, nor the ICC, to manage and decide what counts as post-conflict justice in Colombia. This could be interpreted to mean that post-conflict law in Colombia needs to be evaluated according to the needs of Colombians. This principle could be used to justify the domestic legal order insofar as the peace process is primarily for the benefit of Colombian citizens. It must respond to their needs in the same way that the Colombian legal order is directed at their rights and responsibilities. This is not perfect justice. It is, however, coherent with the purposes of Article 17. Further, it is coherent with the purposes of international legal order as a whole which is based on sovereign independence and equality. The principle of sovereign equality is reflected in Article 2(7) of the UN Charter which states that ‘nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State’.Footnote 71
3.2 Summary
The foregoing exploration of the jus post bellum as integrity might suggest two principles that underpin the Rome Statute and its relationship with transitional societies: (i) peace, and (ii) local ownership. A Dworkinian version of the jus post bellum might suggest that they ought to be used to understand the idea of ‘accountability’ in post-conflict situations which cannot be the same as the idea of accountability in every situation. As MacIntyre has argued, moral, social, and political concepts are contingent on the particular characteristics of societies and their perception of history.Footnote 72 To the extent that the SJP functions as it is supposed to and the perpetrators undertake the accountability obligations as mandated, the OTP might see in these principles a good reason to refrain from intervening in the Colombian situation.Footnote 73 Of course, to the extent that the alternative sentences regime turns out to be a farce, then a different interpretation may be made. In this situation, there would be no investigation and a specific rule of the Rome Statute would have been violated. Thus, a reliance on principles would be obviated.
4. Challenges to the jus post bellum as integrity
The foregoing is a necessarily brief exploration of the idea of integrity in post-conflict law. It has assumed certain issues which will be addressed in this section. One major issue is the role a community’s political morality plays in Dworkin’s method of interpretation. This is important because, for Dworkin, an interpretation must not only fit legal practice, it must also be justifiable from the perspective of the political community’s morality. The two are linked because for Dworkin law is a branch of political morality.Footnote 74 He argues that an action at law is inevitably moral because there is always a risk of an interpretation giving rise to ‘a distinct form of public injustice’.Footnote 75 So, when the law is interpreted incorrectly, ‘the community has inflicted a moral injury on one of its members because it has stamped him in some degree or dimension as an outlaw’.Footnote 76 This affects Dworkin’s view on how judges and other legal actors should decide cases. He argues that when they interpret the law, they should aim to identify the community morality in a way that would justify the ‘stamping’ of the individual as an outlaw. Further, the more a judge can achieve a principled coherence between the interpretation of the law in a specific case and the political morality of the community the better they are interpreting the law.Footnote 77
Dworkin discussed three different kinds of community.Footnote 78 These are a ‘bare’ community, a ‘rulebook’ community and a ‘community of principle’.Footnote 79 In a bare community, the members treat their association as a ‘de facto accident of history and geography’.Footnote 80 Members of a de facto association may treat each other as means towards selfish ends. They do not share purposes or principles other than those which ensure their mutual coexistence. The second ‘rulebook’ community has members that ‘accept a general commitment to obey the rules established …’.Footnote 81 However, they do not share a common commitment to the ‘underlying principles that are themselves a source of further obligation …’.Footnote 82 The only obligations they accept are the rules which are the result of negotiation and compromise between ‘antagonistic interests’.Footnote 83 This is important because members of the community cannot insist on members complying with obligations beyond what has been explicitly agreed. Dworkin explains,
If the rules are the product of special negotiation [where] each side has tried to give up as little in return for as much as possible … it would therefore be unfair and not merely mistaken for either to claim that their agreement embraces anything not explicitly agreed.Footnote 84
Dworkin’s final model of community is a ‘community of principle’. In this sort of community, members accept a shared understanding that they are governed by common principles, ‘not just by the rules hammered out in political compromise’.Footnote 85 Each member of the community ‘accepts that others have rights’ and that they ‘have duties flowing from that scheme, even though these have never been formally identified or declared’.Footnote 86
A single community might demonstrate elements of all three types. Dworkin’s point is that an interpretation of law will necessarily imply one of these three kinds of community. The jus post bellum as integrity, however, implies that the third kind of community, a community of principle, has come into existence. This is because relying on the principle of integrity to interpret the law requires the judge (or the OTP in this case) to fill the gaps in the rules with those political-moral principles, ‘never … formally identified or declared’, that reflect the community’s political morality in its best light.
In the previous section, the end of the conflict, and the signing of a peace agreement between the FARC-EP and the Colombian government, was taken as a sign that a single political community had come into existence. However, there is ongoing fragmentation and disagreement over the peace process in Colombia. The implementation of the peace agreement has been anything but straightforward. The recent bitter dispute over the legitimacy of the SJP and the passing of its Statutory Law (a necessary legal authority for the purposes of domestic constitutional law) demonstrates division in the commitment to the principles expressly adopted by the parties in the peace agreement (let alone any undeclared principles).Footnote 87 The objections raised to the SJP were rejected by the CCC but they served as a reminder that the underlying reasons for the armed conflict have not disappeared.Footnote 88 Moreover, according to the latest ICRC analysis of the situation, after the 2016 peace agreement with the FARC-EP, there are still five ongoing armed conflicts in Colombia.Footnote 89 Finally, the post-agreement increase in the extra-judicial executions of human rights defenders, often seeking to implement land redistribution provisions of the peace agreement, also points to a fragmented community.Footnote 90 All of this suggests that it may be premature to declare that a community of principle has emerged that would provide the structural conditions for ‘law as integrity’.
The analysis in the previous section also presumed the existence of a ‘community of principle’ at the international level. This was necessary because post-conflict law straddles domestic and international legal orders. Yet, the nature of the political relationship between sovereign states is a difficult one to characterize in terms of ‘integrity’.Footnote 91 Here too, the structural conditions appear inapposite to a finding that a community of principle founded on integrity has emerged.
The unique relationship between states has given rise to a legal order that is markedly different from those found in domestic legal orders. Relations between states are horizontal rather than vertical. The political situation is one of ‘relative anarchy’.Footnote 92 The difficulties of ‘fit’ between international society and Dworkin’s theory are evident when we consider Dworkin’s reliance on the notion of ‘associative obligations’.Footnote 93 By this he means ‘the special responsibilities social practice attaches to membership in some biological or social group’.Footnote 94 Dworkin’s key point is that the responsibilities that a person owes to members of the community of principle are not owed as a result of ‘deliberate commitment’.Footnote 95 Instead, they emerge ‘through a series of choices and events’.Footnote 96 It is the history of the association that attracts the special kinds of obligations as between members.
In relation to international society, this suggests that the kinds of obligations needed for evidence of an international community of principle are not those core principles to which states have freely consented.Footnote 97 Instead, the principles in question must emerge from historical association. These embody the ‘spiritual cohesion’ of the relevant community.Footnote 98 These principles would reflect the fact that states share ‘certain attitudes about the responsibilities they owe one another’ beyond those rules explicitly agreed.Footnote 99 Dworkin argues that the kinds of obligations that emerge in communities of principle demonstrate four characteristics. These are:
1. Speciality: Members would accept that the responsibilities arise distinctly within the group rather than as general duties to those outside the group. This means that ‘each citizen respects the principles of fairness and justice instinct in the standing political arrangement of his particular community, which may be different from those of other communities, whether or not he thinks these the best principles from a utopian standpoint’.Footnote 100
2. Personality: Members accept that the responsibilities are personal. They flow directly from one member to another, not only to the group as a whole. It is a community where no one is ‘to be left out’ and where all are ‘in politics together for better or worse’ and that ‘no one may be sacrificed, like wounded left on the battlefield, to the crusade of justice for all’.Footnote 101
3. Integrity: Members link the responsibilities they have to other individuals as flowing from a general responsibility of concern for the wellbeing of others in the group. Dworkin’s community of principle requires that the citizens sacrifice their immediate political concerns in the interest of a commitment to integrity of the legal order as a whole.
4. Equality: Members accept that the group’s practices are based on an equal concern for all members.Footnote 102 A community of principle produces and demonstrates equality as between the individuals. Dworkin’s thesis argues that when individuals disagree about justice, the best way forward is to agree on adjudicating the disagreements according to a coherent scheme of principles founded on integrity.
Applied to international society, the relationship between states is not plausibly described in these terms. Rather than a community of principle, therefore, the international society of states more accurately resembles a ‘rulebook’ community. This is not to say that states do not consider themselves to be in a special relationship vis-à-vis one another. States accept, without qualification, that they are all sovereign equals in the international society. They enjoy certain rights that no other international actors enjoy.Footnote 103 However, the very purpose, or point, of the principle of sovereign equality reflects the fact that states do not share principles of justice or fairness.
It might be countered that the majority of states have consented to a number of rules that suggest that international society is concerned as much with the principle of ‘human security’ as it is with ‘national security’. After all, the principle of sovereign equality is not simply about independence and freedom, it is also about duties and obligations.Footnote 104 According to Kingsbury, evidence of a commitment to certain aspects of ‘global public policy’ means that a certain pressure is put on the regulatory freedom of states.Footnote 105 Kingsbury identifies a commitment to ‘markets, civil society, liberal peace, the rule of law, untrammelled communication, and transnationalism’ by way of illustration.Footnote 106
Nevertheless, the principle of sovereign equality functions to protect states, and especially weak states, from the interference of other more powerful states and their version of ‘the good’.Footnote 107 Its role is to ‘keep States peacefully apart’ rather than ‘bringing them actively together.Footnote 108 Sovereign equality reflects a commitment to agree to disagree on important matters of principle. It means that, as a matter of domestic law, each state is free to develop its internal political order in the way that it thinks is ‘best’. Further, there are good reasons for maintaining a strict positivist methodology in the identification of international law. It is a deep concern to many international lawyers, not to mention states, that mixing morality into the identification of law increases the risk of allowing the powerful to influence the law to their own ends. The international legal order supposedly defends against this possibility by promoting the sovereign equality of its members as the foundational principle of international law. This principle represents the ‘persistent, though bounded, disagreement [about] what constitutes a legitimate and just internal public order’.Footnote 109 As Çali has put it, if ‘morality is called upon to determine the content of international law there is an important danger: the views of the mighty may win over the views of the weak’.Footnote 110 Thus, states are under no legal obligation to make their internal rules coherent in principle (with the aim that they ensure the equal concern and respect of its citizens) in the way that Dworkinian integrity demands.Footnote 111
All of this is a major challenge to the concept of the jus post bellum as integrity. It is difficult for integrity to arise in post-conflict law because ‘[i]ntegrity holds within political communities, not among them’.Footnote 112 If the structural political conditions in Colombia and in international society are so unlike those that Dworkin required for the purposes of ‘law as integrity’, then it may be wondered whether this version of the jus post bellum ought to carry any interpretive weight as a concept in post-conflict law.
5. Conclusions
The jus post bellum as integrity may suggest what post-conflict law ought to be in specific situations. As an analytical tool it may help interpreters to explore the kinds of principles that might explain and justify a set of rules. These principles, in turn, may then be used to provide reasons that justify interpretations of law and policy responses, perhaps, across different post-conflict situations. A Dworkinian approach promotes a view of post-conflict law which tasks all stakeholders to view themselves as part of a community of post-conflict legal actors.Footnote 113
Detractors can point to the difficulties in adopting such a ‘naturalistic’ approach to the identification of international legal norms. The traditional approach to the identification of international law asserts that the rules that count as legal rules are those to which states can be said to have explicitly, or implicitly, consented. According to this view, states get the law that they want and not the law that they deserve.Footnote 114 But, importantly, for the purposes of this article, international legal positivism leads to a legal order that is often limited, ambiguous, and unclear. It leaves gaps. It is wrong to conclude that whatever is not explicitly prohibited by international law is unregulated and subject only to the discretion of states.Footnote 115 Another, more ‘positive’ approach, is to focus on the implications of the rule-systems to which states have consented. Dworkin’s interpretive approach is one way of attempting to ‘fill-in-the-blanks’. To accommodate this approach, an important analytical shift may be to focus on human well-being as the central subject of international law rather than ‘states’. This view asserts that states (and international organizations) are not ‘opaque billiard balls’ but instead ‘collections of actors with concrete interests’.Footnote 116 This view of international law emerges from a socio-empirical claim in international relations theory about actual real-life ‘state-to-state’, or ‘state-to-ICC’ interaction. For commentators such as Anne-Marie Slaughter, this analytical shift should have great implications for how international lawyers understand and interpret their subject. In her view, international issues, which lawyers have become accustomed to seeing as ‘state-to-state’, ought to be reframed ‘in terms of the interaction between individuals and specific government institutions’.Footnote 117 A de-emphasis on ‘states’ may allow lawyers to re-focus on ‘the individual human being’ or ‘humanity’ as the primary subject of the international legal order.Footnote 118
A Dworkinian approach to international criminal justice could be developed along these lines. It could have important implications for the way positive state rights and obligations are interpreted. In this respect, even the most fundamental principles of the international legal order, such as sovereign equality, have been open to re-interpretation. For example, Anne Peters has argued that sovereignty is not only ‘limited by human rights’ but also ‘from the outset determined and qualified by humanity’.Footnote 119 For Peters this means that sovereignty ‘has a legal value only to the extent that it respects human rights, interests and needs’.Footnote 120
In respect of Colombia, and other post-conflict societies, more research ought to be done to identify and refine the principles that best explain and justify transitional criminal justice; how they apply, in theory and in practice, to concrete situations; and how, ultimately, they dictate whether and how the ICC should respond to complex situations of transitional criminal justice. The ICC itself has not yet made a firm pronouncement on these issues. Some indication of its likely stance can be found in a presentation given by Deputy Prosecutor James Stewart in Colombia.Footnote 121 He has stated that the compatibility of Colombia-type ‘alternative sentences’ with the Rome Statute will ‘depend on the context and particular circumstances of the case’.Footnote 122 For reduced sentences to be compatible, certain conditions must be fulfilled which include ‘acknowledgement of criminal responsibility, demobilization and disarmament, guarantees of non-repetition, full participation in the process of establishing the truth about serious crimes … [a] ban from taking part in public affairs among other measures’.Footnote 123 Further, the Deputy Prosecutor has argued that a suspension of sentences would be ‘manifestly inadequate’.Footnote 124 Finally, any ‘alternative’ sentences must be ‘consistent with a genuine attempt to bring the convicted persons to justice’.Footnote 125 It is now up to the SJP to adjudicate, apply and monitor the sentencing regime in a way that is compatible with the ICC’s broad guidelines.
