Impunity and Hope

• Author: Tony Reeves
• Published date: 01 December 2019
• DOI: http://doi.org/10.1111/raju.12257
• Date: 01 December 2019

© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

Ratio Juris. Vol. 32 No. 4 December 2019 (415–438)

Impunity and Hope

TONY REEVES

Abstract. Is there a duty to prosecute grave international crimes? Many have thought so, even

if they recognize the obligation to be defeasible. However, the theoretical literature frequently

leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated,

leaving it unclear which considerations should drive and shape processes of criminal account-

ability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries

concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to pros-

ecute can be substantiated on the basis of a single class of reasons, though also that stand-

ard justifications of international criminal law (as currently conceived) are not up to the task.

The account exploits the expressive dimension of punishment, but locates the central good of

criminal accountability in its capacity to appropriately enable an agential stance on the part of

subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The ap-

proach also displays the cynicism of an anti-impunity ethos in the absence of a robust commit-

ment to securing basic human rights in transitional circumstances.

A government may be presumed to have encouraged or condoned acts prohibited by this sec-

tion if such acts, especially by its officials, have been repeated or notorious and no steps have

been taken to prevent them or to punish the perpetrators.1

Added to the traumatic consequences of pain, suffering, loss, bereavement and helplessness

experienced, impunity attacks major human values, destroys beliefs and principles and alters

the norms and rules that humankind has gradually built up over time […]. Impunity is a human

decision, an action, a behavior, an act of denial of concrete reality: it is an act of violence […].

With impunity, the crime and its circumstances remain anonymous, shrouded in the silence

of the unknown […]. The attitude of an apathetic, indifferent civil society seemingly disposed

towards forgetting is perceived as equally aggressive. Conversely, a responsive attitude marked

by commitment and receptivity does engender hope. (Rojas Baeza 1996, 75–6)

If the Government wishes to function as a Government which abides justice and truth, whoever

the perpetrator is, they should make them to stand in court and say the truth. They must not be

given protection and weaken the punishment.2

1 Restatement Third, The Foreign Relations Law of the United States § 702, “Customary

International Law of Human Rights.”

2 From a Sri Lankan focus group discussion quoted in Final Report of the Consultation Task Force

on Reconciliation Mechanisms (17 Nov. 2016), vol. I, chap. V, sec. 2.1.1, p. 236.

Tony Reeves416

Ratio Juris, Vol. 32, No. 4© 2019 The Author. Ratio Juris © 2019 John Wiley & Sons Ltd.

1. Introduction

Many regard avoidable impunity for atrocity as involving a significant moral failing

on the part of those who could respond. Calls to end impunity have been prominent

in discussions of international criminal law (ICL) and transitional justice, and fre-

quently this is understood to involve imposing criminal accountability on those re-

sponsible for grave international crimes. Even those who regard alternative justice

processes and amnesties as normally appropriate in transitional circumstances fre-

quently recognize as desirable that at least some prosecutions for the commission of

an atrocity take place (see Orentlicher 2007). Given the burdens that prosecuting per-

petrators can place on transitional societies, and the severe challenges of conducting

international tribunals3 fairly, what accounts for the sense of importance of specifi-

cally criminal accountability for atrocity? Can this attitude be justified? I am inter-

ested here in these two questions, though I will focus on the second as a way of

getting at the first.

I take it that there are numerous kinds of moral responses to socially engineered

atrocity that drive the sense that proper accountability requires forceful punitive

measures. Imperatives such as “Never again,” “The perpetrators of this appalling

evil must be given justice,” “The truth must be told,” and “We must convey that

these crimes violate the conscience of humanity” all variously, and sometimes simul-

taneously, accompany demands to end impunity. Yet, these imperatives push in dif-

ferent normative directions, each direction with its own peculiar objectives. Perhaps

calls to resist impunity simply involve an unhappy amalgam of concerns. However,

these grounds are not equally viable as justifications for international tribunals, and

consequently, it is worth considering whether there is a single body of reasons pow-

erful enough to support a duty to resist impunity for specific cases of atrocity. I will

argue that there is, though I will not deny that other considerations might also offer

some support for the requirement. One advantage of identifying a core basis, versus

embracing undifferentiated pluralism, is that it can offer less ambiguous guidance

for the practice of ICL. Further, if a firm basis can be defended, we will likely have

touched upon something that drives actual calls to end impunity for atrocity.

I define the anti-impunity norm as a moral requirement holding that the commis-

sion of an atrocity enjoins capable respondents to hold at least some culpable perpe-

trators criminally accountable for their wrongdoing. The norm, to be interesting in

the way it has been to those faced with the question of how to respond to atrocity,

must be supported by substantial moral reasons such that nonresponse to the norm

involves moral failure or remainder. I approach the substantiation of the anti-impu-

nity norm by first arguing that certain existing approaches are inadequate and then

by elaborating a view along expressivist lines. The expressivist rationale I defend

differs from many others in that it is not predicated on the social fact of a shared

normative community. On my view, expressive denunciation of atrocity via criminal

accountability is important because it helps warrant agency-enabling hope on the

part of political subjects in transitional circumstances.

I can briefly summarize the account. What I will call interpersonal hope is a prac-

tical attitude involving a form of reliance on, and disposition to imaginatively engage

with, outcomes under the control of others. This attitude is justified when it can be

3 Throughout, international tribunal refers to any court trying a case under ICL.