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Article Excerpt
LAW, WAR AND CRIME: WAR CRIMES TRIALS AND THE REINVENTION OF INTERNATIONAL LAW BY GERRY SIMPSON (CAMBRIDGE, UK: POLITY PRESS, 2007) 225 PAGES. PRICE AU$40.95 (PAPERBACK) ISBN 9780745630236.
I INTEGRATING AND DIFFERENTIATING LAW AND POLITICS
From 11-14 June 2007, the Special Working Group on the Crime of Aggression, a committee mandated by the Assembly of States Parties of the International Criminal Court ('ICC'), had an informal inter-sessional meeting at Princeton University in the United States. (1) This was part of the present effort to consolidate the codification process for international crimes that began with the trials of the leaders of Nazi Germany and Imperial Japan after World War II. Attendees discussed various proposals pertaining to a legal definition of criminal aggression under the Rome Statute of the International Criminal Court. (2) The issues they looked at in codifying the crime of aggression included defining what constitutes blameworthy conduct by an individual and by the state, and the conditions for the exercise of jurisdiction.
Although these diplomats would readily concede that they were engaged in a political process to produce a legal text, it would be more difficult for a scholar to sustain the claim that their activity was in actuality 'politics in a different key'. (3) However, this is precisely what Professor Gerry Simpson seeks to defend in his latest book, Law, War and Crime, which is a closely reasoned analysis of the legal project of criminalising aspects of the conduct of war, and war itself.
As the title suggests, the theoretical standpoint of this book encompasses, at least conceptually, issues of law, war and crime. Each of these issues stands on the border of politics and law. The author first renders these issues comparable, and then distinguishes them from each other formally and substantively. The inquiry calls for one to render to politics what belongs to politics and to law what belongs to law.
Given this requirement, a sociological approach to unravelling the similarities and differences would be the key to simultaneously integrating politics and law within a single view. This would not only provide a common basis for comparison, but also subsequently enunciate the telling differences that distinguish law from politics. In fact, the author approaches law as a 'field', (4) in a manner rather redolent of the form of sociological analysis that Pierre Bourdieu advanced. (5) However, this methodological issue is not particularly developed and, given the specific focus and argument of Simpson's work, this is probably just as well.
The consequence of this methodology is that--although the book seems to be and is articulated as a work on law, about law and by a legal academic--its central claim is that its subject is politics. (6) However, how does this stand up to Bourdieu's claim that entry into the juridical field tautologically implies acceptance of the field's fundamental rule that 'within the field, conflicts can only be resolved juridically--that is, according to the rules and conventions of the field itself'? (7) Even further, '[t]he constitution of the juridical field is inseparable from the institution of a professional monopoly over the production and sale of the particular category of product's legal services'. (8) Simply put, lawyers have the monopoly on law, once it is law. How then can law be politics?
The beginnings of such an inquiry are, intriguingly enough, traceable at the end of the book. In Chapter 8, entitled 'Law's Fate', the author asks a number of questions: 'What sort of wars are we now waging? And how should we respond to them? With law? Or with fatalism and irony?' (9)
These questions challenge the very utility of the law itself with reference to war or, in the alternative, suggest resigning oneself to the problem of war with sophisticated ambivalence. This review attempts to examine how Simpson ended with these questions and aims to identify possible trajectories for future investigation. These could arguably include: is there a distinction between just and unjust force? Who decides this? How? And with reference to what? Couched like that, these questions are more amenable to processing within the legal system from legislation to adjudication and enforcement, rather than by a preponderance of force: the default mode of resolution in the absence of law.
Most importantly--and this is decisive to this review's critique--even when such brute force is brought to bear, this in itself will not change the law but only breach it. Further, where it is claimed that such use of force has in fact changed the law, then this is (as outlined below) double-edged violence--not just contrary to law but also against the system of law and thus simultaneously a crime of aggression and an abuse of the legal process. This is a violence against the notion of law itself, not only against its provisions but also against the very order of normality that makes the law intelligible. One is thus able to distinguish violence from force in society by applying the distinction between legal (law enforcement and self-defence) and illegal (violence). As Saint Augustine had it, it is an attempt to reconstruct violently the present 'normal' to a state of a new 'normal' more congenial to the ends of the aggressor. (10) In other words, this violence is on the wrong side of a line separating self-defence from taking the law into one's own hands.
Force and violence both involve coercion. The distinction may be that force is coercion used for social ends (for example, law enforcement or self-defence) while violence is coercion used for antisocial ends (here the crime of aggression). With reference to...
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