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Published online by Cambridge University Press: 14 February 2022
In discussions of impunity, such as the one surrounding the International Criminal Court, the concept of impunity itself has remained relatively unattended. Examining the concept more closely reveals that we use it in both thin and thick senses, the thin relating to a concern about the values of punishment and the criminal law and the thick to a broader notion of equality, of which crimes being punished (equally) is one aspect, but not the totality of the issue. Only a thick version of impunity captures all that makes it a problem we care greatly about. According to this conception, what makes impunity a problem is primarily a failure to ensure equality before the law. This can show up in two ways. First, when a crime is not prosecuted or punished because the offender belongs to a group of people who are beyond the reach of the law. Second, when a crime is not prosecuted or punished because the victim belongs to a group of people deemed less important in the eyes the law. Institutions and courts of law end impunity, first and foremost, by restoring the experience of equality against privilege and brute power. This sets an important challenge to the International Criminal Court, because while the Court may serve many important values, its current institutional formation and its political context seem to undermine its capacity to contribute to end impunity in the thicker sense.
1 See, for example, A. Anghie, ‘The evolution of international law: Colonial and postcolonial realities’, (2006) 27 Third World Quarterly 5, at 739; G. Simpson, Law, War and Crime Polity (2007); and generally the works contained in C. Schwöbel (ed.), Critical approaches to international criminal law: an introduction (2014). See also M. Langer, ‘The Archipelago and the Wheel. The Universal Jurisdiction and the International Criminal Court Regimes’, in M. Minow, C. C. True-Frost and A. Whiting (eds.), The First Global Prosecutor: Promise and Constraints (2015), at 216.
2 M. Cherif Bassiouni, ‘Searching for peace and achieving justice: The need for accountability’, (1996) 59 Law and Contemporary Problems, at 9; M. C. Bassiouni, ‘Combating Impunity for International Crimes’, (2000) 71 University of Colorado Law Review, at 409; K. Hessler, ‘State Sovereignty as an Obstacle to International Criminal Law’, in L. May and Z. Hoskins (eds.), International Criminal Law and Philosophy (2010), at 39; D. Luban, ‘Fairness to Rightness’, Georgetown Public Law Research Paper No. 1154117; R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005); W. Lee, ‘International Crimes and Universal Jurisdiction’, in May and Hoskins, ibid., at 30.
3 Both equality among individuals and among states. See S. Nouwen, ‘Legal Equality on Trial: Sovereigns and Individuals Before the International Criminal Court’, (2012) 43 Netherlands Yearbook of International Law, at 151.
4 According to George Fletcher the word comes from the Spanish impunidad, which became an important political concept in the 1980’s during the government of President Raúl Alfonsín in Argentina. G. P. Fletcher, ‘Justice and fairness in the protection of crime victims’, (2005) 9 Lewis & Clark Law Review, at 556.
5 M. Drumbl, ‘Impunities’, in K. Heller et al. (eds.), The Oxford Handbook of International Criminal Law (2020), at 238.
6 M. Pensky, ‘Two cheers for the impunity norm’, (2016) 42 Philosophy & Social Criticism 4–5, at 487; ‘Impunity: a philosophical analysis’, in M. Bergsmo and E. J. Buis (eds.), Philosophical Foundations of International Criminal Law: Foundational Concepts (2019), at 241; T. Reeves, ‘Impunity and Hope’, (2019) 32 Ratio Juris 4, at 415. Regarding the idea that it may be too soon to pass judgment on the Court see D. Luban, ‘After the honeymoon: reflections on the current state of international criminal justice’, (2013) 11 Journal of International Criminal Justice 3, at 505.
7 As I will later argue, bringing equality to bear on the problem of impunity shows that ending impunity and serving the ends of ‘punishment’ can be distinguished as two separate functions, and we could at least identify a third function of the Court as that of helping to restore peace and security. See, in this sense, F. Jessberger and J. Geneuss, ‘The many faces of the International Criminal Court’, (2012) 10 Journal of International Criminal Justice 5, at 1081.
8 For example, M. S. Moore, Placing Blame: A Theory of the Criminal Law (1997), at 154, 661. In some versions of retribution, lack of punishment is always a problem as communities are understood as owing punishment to the offenders as a way of recognizing their agency and capacity of being responsible subjects. See G. W. F. Hegel, Elements of the Philosophy of Right (1991), at 126; M. Tunick, Hegel’s Political Philosophy: Interpreting the Practice of Legal Punishment (2014); J. G. Murphy, ‘Marxism and Retribution’, (1973) 2 Philosophy and Public Affairs, at 217. In a somewhat different formulation, see also H. Morris, Persons and punishment, (1968) 52(4) The Monist, at 475–501. George Fletcher has also argued that the state’s legitimacy demands that it does not ‘tolerate criminality that it has the capacity to punish’ or else it becomes complicit in the crime: Fletcher, supra note 4, at 555. Other versions of retributive justice claim that desert is not enough to ground a duty to punish, but they would still see intrinsic value in the practice. See in this sense, D. Husak, ‘Why Punish the Deserving?’, (1992) 26 Noûs, at 447; A. Duff, Punishment, Communication and Community (2001), at 175.
9 See, for example, K. Musalo, E. Pellegrin and S. Shawn Roberts, ‘Crimes without punishment: Violence against women in Guatemala’, (2010) 21 Hastings Women’s Law Journal, at 161; P. Nadanovsky et al., ‘Homicide and impunity: an ecological analysis at state level in Brazil’, (2009) 43 Revista de Saúde Pública, at 733.
10 C. Beccaria, On Crimes and Punishments (1986); J. Bentham, Tratados de Legislación Civil y Penal: Obra Extractada de los Manuscritos del señor Jeremias Bentham (1821). See also R. A. Posner, ‘An economic theory of the criminal law’, (1985) 85 Columbia Law Review 6, at 1193.
11 Pensky distinguishes between narrow and a broad conception of impunity, where the first is about a failure to punish while the second is about a lack of accountability. See Pensky (2019), supra note 6, at 249.
12 Ibid., at 263. Another dimension of impunity which I do not have the space to analyse here is what Antony Duff has called a pre-legal notion of impunity, where what is at issue is not a failure to punish or to call to account through the criminal law, but rather the more fundamental concern of having a system that does not let moral wrongdoers ‘get away’ with their wrongs. See A. Duff, The Realm of Criminal Law (2018), at 220.
13 Beyond potential biases, every criminal law system has economic and even technological limitations that would make it impossible to aspire to punish most of the crimes that are committed. Studies suggest that around 40% of crimes might not even be reported, and from those which are reported only a fraction will be investigated, prosecuted and brought to trial. See T. L. Penney, ‘Dark Figure of Crime (Problems of Estimation)’, in Blackwell (ed.), The Encyclopedia of Criminology and Criminal Justice (2014).
14 Studies show that the public perception of the relation between crime and punishment is more complex, and less punitive, than what the news media often represent. See R. Gargarella, Castigar al Prójimo (2016), at 189; J. V. Roberts, ‘Public Opinion and Sentencing Policy’, in S. Rex and M. Tonry (eds.), Reform and Punishment (2012), at 18; G. Johnstone, ‘Penal policy making: Elitist, populist or participatory?’, (2000) 2 Punishment & Society, at 161; J. V. Roberts and R. Hastings, ‘Public Opinion and Crime Prevention: A Review of International Trends’, in B. G. Welsh and D. P. Farrington (eds.), The Oxford Handbook of Crime Prevention (2012), at 490. The public’s support for punitive policies may not lie on a punitive instinct but rather it is the way in which the fears and anxieties of contemporary life are channeled by our political institutions. D. Garland, The Culture of Control (2001), at 141.
15 See, for example, Husak, supra note 8, at 447.
16 Studies on the efficacy of punishment, mostly focused on deterrence and recidivism, show that efficacy is not easy to assess. See, for example, C. Marie, A. N. Doob and F. E. Zimring. ‘Proposition 8 and crime rates in California: The case of the disappearing deterrent’, (2006) 5 Criminology & Public Policy 3, at 417. M. Tonry, ‘Learning from the limitations of deterrence research’, (2008) 37 Crime and Justice 1, at 279; A. Chalfin and J. McCrary, ‘Criminal deterrence: A review of the literature’, (2017) 55 Journal of Economic Literature 1, at 5; R. Apel and D. S. Nagin, ‘General deterrence: A review of recent evidence’, (2011) 4 Crime and Public Policy, at 411.
17 Most offenders have suffered such levels of social, political, and economic exclusion that punishing them is progressively seen as morally and politically dubious. See S. Buss, ‘Justified Wrongdoing’, (1997) 31 Noûs, at 337; A. Duff, ‘Blame, Moral Standing and the Legitimacy of the Criminal Trial’, (2010) 23(2) Ratio, at 123; S. P. Garvey, ‘Injustice, Authority, and the Criminal Law’, in A. Sarat (ed.), The Punitive Imagination (2015), at 42–81; A. von Hirsch, Doing Justice: The Choice of Punishments (1976); R. Lorca, ‘Punishing the Poor and the Limits of Legality’, Law, Culture and the Humanities (2018); T. Shelby, ‘Justice, deviance, and the dark ghetto’, (2007) 35 Philosophy & Public Affairs 2, at 126; M. Tonry, Malign Neglect: Race, Crime, and Punishment in America (1996); W. J. Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy (1996); G. Watson, ‘Responsibility and the Limits of Evil’, in his Agency and Answerability: Selected Essays (2004), at 219.
18 See E. H. Sutherland, ‘White-Collar Criminality‘, (1940) 5 American Sociological Review 1, at 1. On the criminal law’s bias against the poor see, for example, I. R. Taylor, P. Walton and J. Young, The New Criminology (1973); L. Wacquant, Punishing the Poor (2009); L. Wacquant, Prisons of Poverty (2009); J. H. Reiman, The Rich Get Richer and the Poor Get Prison (1995); R. G. Shelden, Controlling the Dangerous Classes: A Critical Introduction to the History of Criminal Justice (2001). See also M. Alexander, The New Jim Crow (2012) and B. Western, Punishment and Inequality in America (2006).
19 Social movements like the Occupy Wall Street movement which protested against income inequality, tend to be triggered by cases of corruption and the sense that corporations and certain social groups benefit from a privileged treatment by the government and the law. Our modern conception of legality and the ideal of living under a rule of law requires levels of regularity and impartiality that do not seem to be substantiated in these cases. See, in this sense, J. Shklar, Legalism (1986), at 109, 113–18; J. Rawls, A Theory of Justice (2005), at 236; J. Waldron, ‘The Concept and the Rule of Law’, (2008–2009) 43 Georgia Law Review 1.
20 S. P. Garvey, ‘Self-Defense and the Mistaken Racist’, (2008) New Criminal Law Review 1, at 119.
21 See, for example, C. A. MacKinnon, ‘Reflections on sex equality under law’, (1991) 100 Yale Law Journal, at 1281; S. Estrich, ‘Rape’, (1986–1985) 95 Yale Law Journal, at 1087; K. Musalo, E. Pellegrin and S. S. Roberts, ‘Crimes without Punishment: Violence against Women in Guatemala’, (2010) 21 Hastings Women’s Law Journal 161–222. An interesting related debate has also taken place at the global level around the progressive recognition of rape as a war crime. See C. MacKinnon, ‘Rape, genocide, and women’s human rights’, (1994) 17 Harvard Women’s Law Journal 5; R. Dixon, ‘Rape as a Crime in International Humanitarian Law: Where to from Here?, (2002) 13 European Journal of International Law, at 697.
22 Shklar, supra note 19, at 108; Rawls, supra note 19, at 236–9; Waldron, supra note 19.
23 While equality in the application of the laws may come in different degrees, it grounds the expectation that courts be seen as applying rules with considerable levels of impartiality Shklar, ibid., at 12–13, 108.
24 In a liberal imagination, criminal law is aimed at regulating behaviours that constitute the most basic normative expectations regarding our public social interactions. See A. Duff, ‘Responsibility, Citizenship, and Criminal Law’, in A. Duff and S. Green (eds.), Philosophical Foundations of Criminal Law (2013), at 125–48; M. D. Dubber, ‘Foundations of State Punishment in Modern Liberal Democracies: Toward a Genealogy of American Criminal Law’, in A. Duff and S. Green (eds.), Philosophical Foundations of Criminal Law (2013), at 84–106; A. Ristroph, ‘Responsibility for the Criminal Law’, in A. Duff and S. Green (eds.), Philosophical Foundations of Criminal Law (2013), at 107–23.
25 See Rawls, supra note 19, at 239–43. Montesquieu’s main reason to defend the importance of separating legislative, judicial, and executive power was precisely to avoid the existence of an agency that was beyond the reach of the law: C. de Montesquieu, The Spirit of the Laws (1989), at 156. Indeed, Hobbes’s refusal to accept the idea that the sovereign could or should be ruled by the civil law, exposed him to the charge of defending Absolutism. See T. Hobbes, Leviathan, (1994), at 213; J. Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, (2011) 22 European Journal of International Law 2, at 317; J. Waldron, ‘Is the rule of law an essentially contested concept (in Florida)?’, in J. Waldron, The Rule of Law and the Separation of Powers (2017), at 157–8; J. Waldron, ‘Why law—Efficacy, freedom, or fidelity?’, (1994) 13 Law and Philosophy 3, at 259.
26 Garvey, supra note 20; F. Zimring, When police kill (2017). Some of the most important social movements connected to this are Critical Resistance, www.criticalresistance.org; Black Lives Matter, www.blacklivesmatter.com/about/; Let Us Breathe Collective, www.letusbreathecollective.com; Transform Harm, www.transformharm.org; Bay Area Transformative Justice Collective, www.batjc.wordpress.com, among others.
27 According to Ruth Wilson Gilmore, racism is ‘the production and exploitation of group-differentiated vulnerability to premature death’. See R. W. Gilmore, ‘Golden gulag: Prisons, surplus, crisis, and opposition in globalizing California’, (2007) 21 University of California Press, at 28.
28 Contemporary abolitionists argue that to restore the dignity and equality of those who are deemed less important by the law, we need to limit the reach of the punitive power of the state, as the criminal law helps in creating subordination among members of a community and the perception that there are people more dangerous and less important than others. See A. Akbar, ‘An abolitionist horizon for police (reform)’, (2020) California Law Review 108; A. Davis, Abolition democracy: Beyond empire, prisons, and torture (2011).
29 As Robert Cover argued, we have reason to prefer to be ruled by law, because even if law will deploy important amounts of violence, it is far better than violence without law, R. M. Cover, ‘Violence and the Word’, (1986) 95 Yale Law Journal 1601–29; Cover, ‘Foreword: Nomos and narrative’, (1983) 97 Harvard Law Review, at 4; see also G. Simpson, Law, War and Crime (2007).
30 Shklar, supra note 19, at 109; E. P. Thompson, Whigs and Hunters (1977), 258–69. Also see in this sense J. Waldron, ‘Does Law Promise Justice’, (2000) 17 Georgia State University Law Review, at 759.
31 Shklar, ibid., at 111–23.
32 Regarding the idea that law can be distinguished to bare facticity because of its aspiration to show validity, see J. Habermas, Between facts and norms: Contributions to a discourse theory of law and democracy (2015).
33 P. W. Kahn, ‘Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order’, (2000) 1 Chicago Journal of International Law, at 1.
34 D. Luban, ‘After the honeymoon: reflections on the current state of international criminal justice’, (2013) 11 Journal of International Criminal Justice, at 505.
35 M. Langer, ‘The Diplomacy of Universal Jurisdiction’, (2011) American Journal of International Law 1–49; A. Kiyani, ‘Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity’, (2016) 14 Journal of International Criminal Justice, at 939.
36 See supra note 13.
37 For a descriptive account over the factors and nature of selectivity in international criminal law see Langer, supra note 1; Langer, supra note 35, at 1–102.
38 See Arts. 12, 13(b), 15 of the Rome Statute and Policy Paper on Preliminary Examinations, ICC-OTP, November 2013.
39 See Policy Paper on Case Selection and Prioritization, ICC-OTP, September 2016.
40 This decision process entails a jurisdiction assessment, an assessment of admissibility, and an ‘interest of justice’ assessment, and in these last two, gravity plays an important role. See Smeulers et al., ‘The Selection of Situations by the ICC: An Empirically Based Evaluation of the OTP’s Performance’, (2015) 15 International Criminal Law Review 5.
41 Gravity has been understood as being both an issue of quantity and quality, which can be assessed in terms of scale, the nature of crimes, the impact of crimes, and the ways in which they are committed. See Smeulers et al., ibid., at 5–8; H. van der Wilt, ‘Selectivity in International Criminal Law: Asymmetrical Enforcement as a Problem for Theories of Punishment’, in F. Jessberger and J. Geneuss (eds.), Why Punish Perpetrators of Mass Atrocities?: Purposes of Punishment in International Criminal Law (2020), at 312.
42 Ibid. Van der Wilt, at 305–6.
43 See R. Rastan, ‘The jurisdictional scope of situations before the International Criminal Court’, (2012) 23 Criminal Law Forum 1. Defining its rules of jurisdiction see Lubanga, ICC Judgment, ICC-01/04-01/06-772,14 December 2006, paras. 21, 22.
44 International crimes established in the Rome Statute. See Art. 5 of the Rome Statute.
45 The territory of a state party. See Arts. 12, 13(b) of the Rome Statute.
46 See Arts. 12, 26 of the Rome Statute.
47 After the entry into force of the Rome Statute. See Art. 11 of the Rome Statute.
48 Many of the non-state parties such as China, India, the United States, Russia, and Pakistan are some of the biggest and most populous countries in the world. See asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
49 The Security Council can exercise this prerogative, acting under Ch. VII of the United Nations Charter. See Art. 13(2) of the Rome Statute; Van der Wilt, supra note 41, at 310–11.
50 See, for example, D. Bosco, Rough justice: The International Criminal Court in a world of power politics. (2013), 39–45, 56–62; D. Kaye, ‘The Council and the Court: Improving Security Council Support of the International Criminal Court’ (2013), UC Irvine School of Law Research Paper, 2013–127.
51 Ibid.
52 See Art. 13(b) and Policy Paper on Preliminary Examinations, ICC-OTP, 2010, para. 2. The Pre-Trial Chamber may object to the decision not to proceed, but it remains a decision of the Court. See J. Trahan, ‘The relationship between the International Criminal Court and the UN Security Council: Parameters and best practices’, (2013) 24 Criminal Law Forum, at 417.
53 Van der Wilt, supra note 41, at 310. In this sense, see also Kiyani, supra note 35, at 947.
54 In UN Security Council Resolutions 1593 (referring the situation in Darfur to the Court) and 1970 (referring the situation in Lybia to the Court), the Security Council claimed that non-party states have exclusive jurisdiction over the acts committed by their officials or personnel when they are acting in operations authorized by the Security Council.
55 Van der Wilt, supra note 41, at 310–11.
56 See A. Hehir and A. Lang, ‘The Impact of the Security Council on the Efficacy of the International Criminal Court and the Responsibility to Protect’, (2015) 26 Criminal Law Forum, at 153. This also suggests that a focus on low-cost defendants is not the result of the Court’s bias against them, but of ‘the successful attempts of states or their powerful allies to deprive the ICC of jurisdiction’, van der Wilt, supra note 41, at 311; see also Smeulers et al., supra note 40.
57 See supra notes 39, 40. A recent example is decision by the Prosecutor to prioritize its investigations in Afghanistan on crimes allegedly committed by the Islamic State or the Taliban, based on their ‘gravity, scale and continuing nature’. Statement of the Prosecutor of the International Criminal Court, Karim A. A. Khan QC, 2021, available at www.icc-cpi.int/Pages/item.aspx?name=2021-09-27-otp-statement-afghanistan.
58 I. Tallgren, ‘The Why Question in International Criminal Punishment – Framing the Landscapes of Asking: A Comment on the Contributions by Frank Neubacher, Sergey Vasiliev and Elies van Sliedregt’, in Jessberger and Geneuss, supra note 41, at 125.
59 According to both van der Wilt and Kiyani, this feature of the Court’s selectivity has gone beyond the borders of self-referrals. See Van der Wilt, supra note 41, at 313; Kiyani, supra note 35, at 948, 951. See also supra note 57.
60 Kiyani, ibid., at 948.
61 Van der Wilt, supra note 41, at 313.
62 Kiyani, supra note 35, at 949.
63 Bosco, supra note 50, at 20.
64 See supra note 41, at 305; M. Drumbl, Atrocity, Punishment and International Law (2007), at 149; I. Tallgren, ‘The sensibility and sense of international criminal law’, (2002) 13 European Journal of International Law 3, at 561; K. Ainley, ‘The international criminal court on trial’, (2011) 24 Cambridge Review of International Affairs 3, at 309; Kiyani, supra note 35.
65 Kiyani, ibid., at 956.
66 Selectivity could even be a virtue against the worry that international punishment could undermine internal processes of peace or reconciliation, see Langer, supra note 35, at 45. See also A. Duursma and T. R. Müller, ‘The ICC indictment against Al-Bashir and its repercussions for peacekeeping and humanitarian operations in Darfur’, (2019) 40 Third World Quarterly 5, at 890. Functions of the Court could also be seen as compatible, as seems to be the view of international criminal law tribunals, see S. Vasiliev, ‘Punishment Rationales in International Criminal Jurisprudence: Two Readings of a Non-question’, in Jessberger and Geneuss, supra note 41, at 79.
67 Examples of this are the Court’s efforts to exercise its territorial jurisdiction over crimes committed by members of non-party states, to attend situations beyond Africa and to clarify prosecutorial criteria for selection. See Van der Wilt, supra note 41, at 322.
68 See, in this sense, F. Neubacher, ‘Criminology of International Crimes’, in Jessberger and Geneuss, supra note 41, at 44; M. Drumbl ‘We’re Exhausting Ourselves, Let’s Get Busy Instead: A Comment on the Contributions by Jakob v.H. Holtermann, Mota Kremnitzer and Daniela Demko’, in ibid., at 212.