THE REGULATORY FUNCTION OF THE TURN TO ANTI-IMPUNITY IN THE PRACTICE OF INTERNATIONAL HUMAN RIGHTS LAW.

• Author: Sayed, Hani

1. INTRODUCTION 1 II. SITUATING THE TURN TO ANTI-IMPUNITY 3 III. THE REGULATORY FUNCTION OF THE TURN TO ANTI-IMPUNITY 7 A. On Linkages and Institutional Interplay 8 B. Beyond Linkages or Taking "Embeddedness" Seriously 10 1. Shared Regulatory Concerns 11 i. The Turn to Anti-Impunity and the Governance of the 'Frame' 13 ii. The Turn to Anti-Impunity and the Governance of Interdependence 14 iii. The Turn to Anti-impunity and the Governance of the Self 17 2. The Dynamic of Difference 18 i. Standard for Proper Administration of Justice 20 ii. ICC Clauses in EU External Relations 21 iii. The Turn to Anti-Impunity and the Political Economy of North-South Relations 24 IV. CONCLUSION 25 I. INTRODUCTION

   In this article, I argue that although a turn to criminal law in the fight against impunity (anti-impunity) is an important milestone in the practice of international human right law, its more transformative impact extends beyond what most human rights activists, academics, and other interested actors consider the boundaries of the field of their practice. More specifically, I argue that the turn to anti-impunity has a regulatory function that touches on broader regulatory concerns of global governance, in particular, the governance of the legal and institutional framework of the Westphalian state system, the governance of the interdependence between the units in that system, and the governance of the self. For the purposes of this article, "regulatory function" refers to situations in which the turn to anti-impunity in international human rights law changes the way policy makers in other regulatory areas define the domain of what is being governed by their policies, and the criterion of what constitutes for them a "good" exercise of governance. In more concrete terms, one of the examples I look at in this article is the situation in which the pursuit of global policy of fighting impunity for human right violations has fundamentally changed the way policy makers understand, at the most basic level, the causes of war and the conditions for peace. The symbiotic connection created through the practice of international human rights law between the objectives of fighting impunity for past human rights violations, reconciliation in war-torn societies, and the prevention of future war became a key ingredient of a new governance mentality in the area of maintenance of international peace and security. Henceforward, maintaining international peace and security, a key objective of the United Nations, involves working on individual psyche, our experiences of trauma as individuals, and on our capacity to reach closure. In this example, developments in the field of human rights that foregrounded the goal of fighting impunity expanded the domain of what is being governed when pursuing the objective of maintaining international peace and security. How individuals subjectively relate to atrocities has become a global governance concern. The question in this governance mentality is no longer how to create the objective conditions for a lasting balance between European powers, as it was in 19th century Europe after the 1815 Congress of Vienna. The question is also no longer only about regulating the ability of sovereign states to use force against each other, as was the case in post-World War II order. The question in this global governance mentality has become also about how to affect individual experiences of trauma.

   In its most basic form, this paper offers a preliminary sketch of the different "practices of power" (1) that allowed a turn to anti-impunity in human rights to play such a role. Section II provides a very brief account of the legal and institutional transformations in international human rights law that many academics and practitioners consider as clear markers of the turn to anti-impunity. In this account, I present the turn to anti-impunity as a complex phenomenon that could be described under three different registers. Thus, the turn to anti-impunity could describe changes in the practices of the human rights movement, or to changes in the background international law framework, or to the success of norm entrepreneurs in pushing specific reform proposals past the tipping point to produce what is referred to in the literature as a norm "cascade." (2) 1 argue that all three aspects of the turn to anti-impunity are essential to understand its broader regulatory functions. In section III, I propose a conceptual framework for the analysis of these regulatory functions. I argue that the regulatory impact of the turn to anti-impunity outside the field of international human rights law can be understood in the conceptual framework of institutional linkages used by international relation theorists and international trade lawyers, to analyze the influence and interaction between international regimes. In addition, through an analysis of the impact of the entry into force of the Rome Statute, I argue that the regulatory impact of the turn to anti-impunity is most visible if we take into account the extent to which international regimes, irrespective of their governance areas are (1) embedded in the same legal/institutional framework for global governance; and (2) embedded in structures of powers that are operative across different governance areas.

   This paper assumes that the turn to anti-impunity in the practice of international human rights law could sometimes be politically or ethically desirable in local contexts. I only hint at the possibility that it may also have necessary costs in the aggregate that are invisible if we remain focused on consequences in the human rights field.

2. SITUATING THE TURN TO ANTI-IMPUNITY

   For the purposes of this paper, impunity refers to a legal situation in which there is a de facto or de jure impossibility of bringing individual violators of human rights to account. (3) Impunity thus defined could be the outcome of factors that are specific to particular national legal system, or to elements hardwired to the matrix of international mechanisms for the protection of international human rights law, or the outcome of their interaction. The turn to anti-impunity in the practice of international human rights law is a complex phenomenon that could be described under different registers, and with different political meanings and different theoretical challenges in each one of these registers.

   The turn to anti-impunity could for instance be described as focusing on the historically and politically relevant fact that the practice of the international human rights law has developed, at least since the 1970s, in a transnational space constituted through networks of local activists, lawyers, doctors, journalists, and nongovernmental organizations ("NGOs") that is collectively referred to as the international human rights movement. (4) In this register, a turn to anti-impunity includes a rather wide spectrum of phenomena that involve varying levels of coordination among participants in the movement. (5) This ranges from carrying a banner in Tahrir square calling for individual criminal prosecution of figures from the Mubarak regime to an international campaign to establish an "International Day to End Impunity," (6) to forming transnational coalitions to coordinate shared strategies and tactics with respect to a particular case, or to the more general goal of advocating a change in the international legal framework. In this register an understanding of the turn to anti-impunity in the practice of international human rights law is very much dependent on how we theorize the human rights movement itself. (7) It will ultimately require an analysis and explanation of the transformations in how the movement articulates its goals, evaluates its successes and failures, or of changes in the types of collective actions that form the vernacular of human rights practice.

   Alternatively, the turn to anti-impunity in the practice of international human rights law could be described by focusing on transformations in the international regime for the protection of human rights. More specifically, a turn to anti-impunity would refer to observed changes in the background international legal nonns that define some basic parameters of the regime including in particular those that define what counts as "protection."

   In this register, a turn to anti-impunity is marked by two very important developments in international human rights and humanitarian law. Firstly, there is the normalization of individual international criminal responsibility for violations of human rights and humanitarian law. This is exemplified by the entry into force (July 1, 2002) of the Rome Statute and the creation of the International Criminal Court (ICC). (8) Second, there is the trend towards reinterpreting the general duties of states under international human rights and humanitarian law. According to this reinterpretation, the duty of states "to respect and to ensure to all individuals within its territory and subject to its jurisdiction" (9) their rights under international human rights and humanitarian law implies a duty to criminally prosecute individual violators. Karen Engle makes a compelling case in demonstrating this trend in the practice of certain international judicial bodies (particularly the Inter-American Court for Human Rights), (10) UN-affiliated organs with a human rights mandate, and NGOs in the human rights movement. (11) In international humanitarian law, in addition to relevant treaty obligations, (12) the restatement of customary international humanitarian law, prepared under the auspices of the Committee for the Red Cross (ICRC), presents a compelling case for the progressive development of a customary law duty on states to "investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects." (13) This duty, still according to the ICRC...