Erga Omnes

Last month Mark Ellis, executive director of the International Bar Association, had a thoughtful op-ed in The New York Times.  Inspired by the British foreign secretary’s comment that perhaps Muammar el-Qaddafi should retire with impunity–notwithstanding the ICC’s arrest warrant this past June–Ellis contrasted the world of jurists and diplomats, what he describes as “collisions between the international justice system and state diplomacy”:

Unfortunately, contradictions and competing agendas undermine the credibility and effectiveness of prosecutors and diplomats alike.

What good is the deterrent effect of criminal prosecution if a diplomat can hold out the prospect of immunity? What good is a diplomat’s promise of immunity if a court can undo it? How fair or credible is a system of justice that is restricted to a politically determined jurisdiction? If the I.C.C. is to provide uniformity in the exercise of jurisdiction over international crimes then why indict one leader for atrocities while ignoring the excesses of another? And ultimately, how do we weigh the price in suffering between judicial accountability and diplomatic compromise?

Diplomacy is about negotiating interests across borders. Justice is about the application of legal principles within jurisdictions. Diplomacy is based on power relationships and relies on nuance, discretion, perceptions and, most important, negotiation. The best diplomacy is often invisible. In contrast, the best judicial processes are based on facts, principles, rigorous adherence to procedures, and above all, transparency.

Despite these differences and potential incompatibilities, diplomats and judicial authorities need to start looking for points of coordination. As Qaddafi awaits his fate, the time has come for diplomats and jurists to begin exploring common ground for the common good. (August 11, 2011)

Ellis’ call for common ground should be taken seriously, but what exactly would it entail in practice?  What precisely are the points of coordination?  The questions raised and contrasts drawn are provocative though perhaps overdrawn.  Is deterrence the principal goal of a system of justice?  Are diplomacy and prosecution really so distinct?  Don’t power relationships shape the law, just as norms occasionally reorient interests?  Finding common ground assumes two overlapping spheres, a fixed conceptualization of political interests on the one hand and judicial processes on the other.  Perhaps if we saw politics in the law and the value of legal regularities in politics we might get closer to an otherwise elusive common ground.