Justice and the faithless: The demand for disobedience in international criminal law
| Author | Bronwyn Leebaw |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | 10.1177/1354066117715899 |
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https://doi.org/10.1177/1354066117715899
European Journal of
International Relations
2018, Vol. 24(2) 344 –366
© The Author(s) 2017
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DOI: 10.1177/1354066117715899
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Justice and the faithless: The
demand for disobedience in
international criminal law
Bronwyn Leebaw
University of California, Riverside, USA
Abstract
How is disobedience required under international criminal law? How do war crimes
trials demand and seek to cultivate disobedience as a response to atrocity? It is
widely recognized that international law may require disobedience as a response to
domestic authorities that order or legalize war crimes, yet this obligation to disobey is
commonly conceptualized as a kind of byproduct of efforts to establish compliance with
international norms. Drawing on empirical and theoretical scholarship analyzing “crimes
of obedience,” this article investigates the demand for disobedience as articulated in
international legal conventions and in war crimes trials dealing with lower-level soldiers
and civilian authorities. It argues that disobedience is an important response to war
crimes and that the capacity to disobey abusive authorities does not follow logically or
inevitably from a commitment to obey laws that criminalize their abuses. In international
criminal law, the obligation to disobey abusive authorities has been articulated in ways
that require the exercise of critical judgment, as well as moral and political agency, in
order to overcome various pressures to obey domestic authority. Prominent theoretical
explanations of compliance with international law not only neglect the importance of
such skills, but call for strategies that are in tension with their development. Closer
attention to the role of exemplary disobedience in the legal reasoning animating war
crimes prosecutions, I suggest, could strengthen the pedagogical role of legal institutions
as a response to criminal obedience and as interventions in the politics of memory.
Keywords
Human rights, international humanitarian law, jus in bello, resistance, socialization,
torture
Corresponding author:
Bronwyn Leebaw, University of California, Watkins Hall, UC Riverside, Riverside, CA 92521, USA.
Email: Bronwyn.leebaw@ucr.edu
715899EJT0010.1177/1354066117715899European Journal of International RelationsLeebaw
research-article2017
Article
Leebaw 345
Introduction
How is disobedience required under international criminal law? How do war crimes tri-
als demand and seek to cultivate disobedience as a response to atrocity? For scholars of
international criminal law, a central concern has been the question of how international
legal institutions secure obedience or compliance from domestic authorities. It is widely
recognized that international law may require disobedience as a response to domestic
authorities that order or legalize war crimes. However, scholars, activists, and courts tend
to conceptualize this demand for disobedience as a kind of byproduct of obedience, sug-
gesting that the same strategies that are thought to secure compliance with international
law should compel people to disobey abusive domestic authorities or render disobedi-
ence unnecessary.
A striking rejoinder to this logic may be located in well-known works by Primo Levi
and Stanley Milgram. Levi urged readers to pay more attention to the problem of com-
plicity — to the “subordinates who sign everything because a signature costs little, those
who shake their heads but acquiesce, those who say ‘If I did not do it, someone worse
than I would’” (Levi, 1988: 68). The Milgram experiments are still routinely cited as a
warning regarding the dark side of obedience and a reminder that even those who are
deeply reluctant to carry out orders may feel incapable of saying “no.” Disobedience,
reflected Milgram (1974: 164), can generate profound feelings of doubt, internal tension,
and the “gnawing sense that one has been faithless.” The capacity to disobey abusive
authorities, these authors suggest, is a vital response to organized atrocity and one that
does not follow logically from a stance of obedience, but seems to require an entirely
different set of strengths.
Taking these insights as a point of departure, this article examines international law’s
demand for disobedience as a response to war crimes and crimes against humanity. It
argues that disobedience and resistance are vital to strengthening the role of international
law as a basis for confronting the authorization of abuses under domestic laws and insti-
tutions, as well as the rationalization of abuse through manipulative interpretations of
international legal standards. However, the capacity to disobey abusive authorities does
not follow logically or inevitably from a commitment to obey the laws that criminalize
their abuses. Prominent approaches to strengthening international criminal law through
measures aimed at securing compliance downplay the importance of resistance as a
response to organized atrocity and denigrate disobedience as a response to abusive
authority. The role of international legal institutions as a basis for accountability and as
interventions in the politics of memory might be strengthened, I suggest, by developing
the pedagogical role of exemplary disobedience.
This analysis builds on the work of scholars that have been concerned with theorizing
accountability for bystanders, beneficiaries, “complex political perpetrators,” and others
in what Levi referred to as “the gray zone” (Baines, 2011; Crawford, 2013; Drumbl,
2007; Esquith, 2010; Meister, 2011). It also engages with scholarly critiques of legalism
as a response to political violence (Asmal et al., 1997; Drumbl, 2007; Howse and Teitel,
2010; Koskenniemi, 2011; McEvoy, 2007; Shklar, 1964: 1–2). Strengthening the role of
legal institutions as a resource for cultivating the exercise of principled disobedience, I
suggest, might offer an important avenue for exposing and addressing the limitations of
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