The Geo Interview with Prof. Paola Gaeta

This conversation between Asish Singh and Prof. Paola Gaeta attended to the host of international governance structures and agreements through which international law springs and the various complexities, ambiguities and paradoxes packed into the conceivement of an international ‘law’ for all nations - particularly relating to state sovereignty. How does one read and apply international law in conflict situations? How has the scope of international law adjudication expanded over the past centuries? This edition of The Geo Interview explains it all.

Image Graphics by Team Geostrata

Asish: Welcome viewers, I am Asish Singh, and we are back with another edition of The Geo Interview with Professor Paola Gaeta. Professor Gaeta is a Professor of International Law at the Graduate Institute Geneva and a Member of the Editorial Board of the Journal of International Criminal Justice and previously of the European Journal of International Law. Her recent publications include The 1949 Geneva Conventions. A Commentary (co-editor, with Andrew Clapham and Marco Sassòli, forthcoming 2015); The Oxford Handbook of International Law in Armed Conflict (co-editor, with Andrew Clapham, 2014); the third and updated edition of Cassese’s International Criminal Law (with Antonio Cassese and others, 2013); The UN Genocide Convention. A Commentary (editor, 2009); and The Statute of the International Criminal Court: A Commentary (co-editor with A. Cassese and J. R.W.D. Jones, 2001). Professor, we would like to welcome you to The Geostrata.

Prof. Gaeta: Thank you for inviting me. It's a pleasure to be here with you today. Thank you.

Asish: Great. So this interview will be on international criminal law and global conflict. So we can start with the first question. Could you please define what is international law in technical parlance and which international governance structures uphold international law?

Prof. Gaeta: Wow, this is a big question, it is a super big question. I mean, generally speaking, international law is the law that governs the relationship amongst states. But this is a very old-fashioned definition of international law because international law now does much more than that. Of course, not only it regulates the behavior of states in their international dealings, but it also has expanded the range of the so-called International actors that come under the view of the regulation of international law.

I may mention international organizations and non-state armed groups and there is a debate about whether or not the business companies and also their behaviors are regulated by international law and so forth. In addition to that, international law, of course, now deals, not only with aspects related to the coexistence of states and different actors but also with cooperation among these different actors. So essentially, there are a variety of institutions that are relevant for the governance of international law at various levels, international and global levels, and regional levels as well.

I think that the most important organization I should mention is the United Nations because of its universal scope and mandate and clearly, it is the most important organization that we shall refer to when we speak of international law and its governance.

Asish: Perfect. Now that we have a framework, to begin with, I would like to ask you, how do you locate criminality in international law? How does international law view criminality?

Prof. Gaeta: And this is interesting Asish, because I said that international law is the body of law that primarily regulates the behavior among states. Clearly, first of all, we shall say that states cannot commit crimes in the traditional sense. So, whenever we speak of the relevance of international or vis-à-vis criminality, we are discussing a particular kind of criminality that is committed against international law and rules, that are considered to be important for the international community as a whole. So not every aspect of individual criminality would come into play.

So a murder would be murder for domestic law, but it's not something that is of interest to international law unless such a murder, for instance, is committed in a particular context. For instance, if it is committed during an armed conflict, against the protected person, and in this case, the murder would also qualify as a war crime because of the particular context in which the murder has taken place.

Similarly, if killings take place in a systematic widespread manner against the civilian population, these acts of criminality would be upgraded to a crime against humanity and therefore, this would be of international concern to the international community as a whole. So international law exceptionally deals with criminality, when certain crimes have been committed in a particular context to trigger the interest of the international community as a whole.

Asish: That's very informative to know. And now that we have a background on how international criminality works in terms of international law, I think that opens up a gateway to understanding, you know, the position of international institutions and international law and its applicability to issues such as the ICJ on the Russia-Ukraine crisis. Could you please share with us how international law is shaping up and looking at this crisis?

Prof. Gaeta: Yes, the example that you provide is quite important because as I said at the beginning, international law deals with the behavior primarily of states and other international actors and then it also now looks at the individual's behavior when they commit certain violations of international law, that amount to International crimes. So in the context of the current Russian-Ukrainian war, there are two levels that we have to look at first of all, there is the behavior of states and they are behaviors that may be in contradiction in violation of international law.

So, it is evident to many that Russia is responsible for a serious violation of international law vis-a-vis Ukraine since it has conducted an act of armed aggression against Ukraine.

In addition to that during the war, a variety of violations of international law, armed conflict, and human rights are committed during such a conflict. And this entails State responsibility at the international level and the International Court of Justice that you mention is the principal judicial body of the United Nations and it deals only with dispute settlement between states. So there is currently a case, which is pending before the International Court of Justice, which has been brought by Ukraine against Russia for it believes and cites that Russia has manipulated the definition of genocide to justify its armed aggression against Ukraine. So there is currently a case pending before the International Court of Justice on this specific matter.

Of course, the act of criminality that may be committed during the conflict comes under the jurisdiction of international courts and tribunals, in particular the International Criminal Court, whose jurisdiction has been accepted ad-hoc by Ukraine. So, currently, there are investigations by the prosecutor of the International Criminal Court concerning the acts of criminality committed by individuals.

And everybody knows that a few weeks ago, the prosecutor of the international criminal court requested and obtained, by the pre-trial chamber of detention, the International Criminal Court issued an arrest warrant against President Putin and other leaders for certain crimes committed during the Ukrainian conflict.

Asish: Interesting. Now that we have that information about the various proceedings that are happening around the Russian-Ukraine crisis in international law, we can now introduce more elements to it. Let's see human rights law and humanitarian law. So could you please explain, can the international law and enforcement structures that you talked about act to stop ongoing civilian hostilities and separation such as Sudan precipitated by you know, warring military and paramilitary factions?

Prof. Gaeta: Well, usually let me say that the existence of a law does not prevent the commission or does not stop the crimes, and also the fact that in every domestic legal system, you have criminal law, this does not stop crimes that may be committed by individuals but certainly it is a standard that is adopted, the legal mandatory standard against which one can adjudicate criminal responsibilities.

So, this is the same for international and criminal law at the International level per se international criminal law, cannot stop offenses. Although, clearly the existence of such standards at an international level, should also serve as a general deterrence for future criminality, and specific deterrence in some circumstances. But it is wishful thinking to think that the existence of a body of law can stop any criminality. When it comes to the enforcement aspect, this is something very important because international law again, I repeat, is the law regulating primarily the behavior among states, and states are characterized by their sovereignty.

Sovereignty means that they retain the monopoly of legitimate violence within a particular territory and they do not recognize any superior authority. So, having said that you might imagine it is quite difficult for international law institutions to coerce a particular state to put in place a mechanism to enforce international criminal law in particular. This is left in a way to the states themselves.

The states have the obligation under international law to prosecute international crimes to prevent violations of international humanitarian law, and so on and so forth. But besides setting such an obligation, international law can not really interfere or cannot really intrude on the sovereignty of states. Of course, there are a variety of mechanisms that may be relevant to try to induce states to do so, through sanctions and military intervention from outside, and other mechanisms that we may think of. But in essence, you cannot really impose from outside to a sovereign state to comply with International humanitarian law, international human rights law, and so forth.

And this is true also for the International Criminal Court because it does not have a police force that can be sent to a state to arrest alleged criminals or to stop violations that are occurring. That's not possible for the International Criminal Court.

The International Criminal Court can only rely upon the judicial cooperation of the relevant state or other states as well.

So you see this is quite difficult because, for one side, you have values that they've been enshrined and agreed upon in international rules, including by the relevant state, which is perhaps violating those rules. On the other side, you have the fact that international society is organized based on the principle of state sovereignty. And therefore, the ways to interfere are limited.

Asish: That's a very important observation in terms of state sovereignty and international law. There is a bit of a paradox when we try to reconcile these concepts and I think that is the very essence of this interview. So from one ambiguity, we jump to the next, so could you please tell us about your project “Laws and War Crimes” and in that context could you also please talk about the risk of responsibility gap in terms of ambiguous criminal intent in the context of autonomous or mixed weapon systems in war crimes?

Prof. Gaeta: Oh again it's a big question. Yes, my project which has just been completed was on lethal autonomous weapons and namely this is a category of new weaponry that states are developing by ingraining artificial intelligence within weapon systems so that those weapon systems may in the end decide to select and hit a human target without control from a human being. So that's the scope of this weaponry that I've studied, the lethal autonomous weapons.

There are already some weapons systems that have a high degree of autonomy, but so far to the best of our knowledge these autonomous weapon systems are not autonomous to select and hit a human target. So the question that has been raised by response is to say, well, this weapon first of all raises ethical concerns because you cannot leave to a machine, the ultimate decision to take a human life. But also from the legal point of view, there is an aspect of the responsibility gap, which is not specific to lethal autonomous weapons, but to any kind of autonomous entity.

You may think of autonomous cars that are currently being developed that can drive autonomously from a human being in the cities, in the streets. So what happens if these entities, these autonomous entities, these autonomous vehicles while they function end up violating international law? Who is responsible for such a violation?

So you might think of autonomous weapons as a system that is being developed to target enemy military combatants. Some members of the enemy armed forces, which is something not prohibited by international law, instead of hitting the enemy military combatant, end up hitting a school where children are attending classes. This would be a violation of international law and eventually criminally responsible for the war crime.

Killing children at school in an armed conflict in a deliberate manner is a war crime.

So my project deals with this particular issue, and I don't want to be too technical, but there are a variety of problems here that pertain to the possibility of human beings retaining control over the weapon at different stages and levels from the point of view of programmers, developers, and the user. So the question is about the possibility of humans being controlled, and the question is whether there is a link between a human being's decision to employ this weapon system and the fact that this weapon system may malfunction.

Can you really attribute blame to the human being who has used the technology in a way that was not intended to hit the children in school but in a way that was not initially unlawful but ended up causing harm in a sensitive area? This was the scope of my research project.

Asish: Thank you for sharing. Just to go back to the previous point that we left, about the paradox of domestic sovereignty and the enforcement of international law on states, there is this dichotomy and how to reconcile and enforce international law in conditions where, let's say, offending states say, "Hey, it’s our internal matter." How do you enforce international law in such circumstances? What are the resources for international institutions to draw upon? Could you please clarify this problem for students and young people interested in international relations?

Prof. Gaeta: Yes, this is a fundamental question. Indeed, there's a long-standing debate about whether or not international law is law in the first place because, let's say, the mechanisms for international law may be seen as not as effective as the ones that exist in the domestic setting.

So there's a big debate that dates back centuries, but in essence, this brings us to the question, "What is the law for us?" Is this something that must be necessarily accompanied by sanctions or an enforcement mechanism or not?

So in general, international law being the law primarily amongst all the states that would require some sort of self-compliance, states agree because states are also the legislators, and as states are also the ones who create international law, it means in principle that since they create the law, they would like to comply with the law and have some interest in creating such a law. International law very much relies on self-compliance, and in the majority of cases, we don't say it, but international law is complied with by states.

There are certain instances of transgressions of international law that are created by states themselves, and these instances are clearly those where there are major geopolitical interests that could never fail, including but not necessarily the use of military force.

In those instances, particularly when international law is violated by powerful states, the possibility of enforcing international law is difficult because the traditional mechanism to enforce international law is for the victim state, so the state that has suffered the violation can use what we call sanctions or coercive measures vis-à-vis the state that is responsible for its violation.

As you might imagine, the violation of the law by the powerful state is a possibility for the victim state if it is not a powerful state to react. So this aspect is clearly the variety of mechanisms and institutions that developed over time, not only the United Nations but also mechanisms for the settlement of a dispute, so we mentioned the International Court of Justice, but there are orders at the international level that are diplomacy, which is, of course, a very important mechanism to induce compliance, and don't they only use mechanisms?

They try to create some sort of moral situation or a way to induce compliance. Clearly, this may be seen as a contradiction, but I don't think it's a contradiction; it's a fact that international law is the law other than that because if there is a possibility to induce major compliance from above in a curative manner, that is the case for the domestic system where we have a sovereign above us. Sending us the police and imposing on us the settlement of disputes before judges—that is, the international law society—would be something else, similar to state structure, and it is not.

It is an article of society, and the fact that International Law has existed over a long period of time to guarantee first of all the coexistence between the states and then the cooperation between states is a sign of progress, and I think that we shall continue such progress by strengthening International Law institutions.

Asish: Very important clarification for the students. And just to proceed with your point that the international system is anarchic,me being a student of IR from the Global South and from India India, would like to share something about the debate that goes on the perceptions of the international system people in the Global South tend to think that hierarchical and not anarchic: so when it is hierarchical, there is a group of unsatisfied states and there is a group of satisfied middle and great powers making these international structures and imposing it on the Global South, on the developing countries who would think that we do not have agency in the making of enforcement of such dictats, for example, United Nations Security Council structure with the P5’s veto, which of course is not as democratic as we would like it to be. So this is a Global South perspective from a student to you. How would you engage with, and what is your perception of, anarchic vs. hierarchical, and where does international law fit from the perspective of the global south in that discourse?

Prof. Paola: That's an important question, of course. When I say that the international law societies are by their definition anarchical; there is no centralized structure that can really impose the will or the international law rules upon a sovereign state. There are a variety of examples where we can see this, including the possibility to impose such a will on countries in the global south, as you mentioned, the conflict in Sudan is one of the examples. How can you impose on Sudan?

Compliance needs to be in accordance with the rules or above, even though you might have a security council or the rest. Still, in the end, it's important to notice that every state is a sovereign state, and there is a lack of centralized structure in the end, and the ultimate goal of having such a system from the perspective of the Global South is perfectly clear.

It is true that first of all there may be a hierarchy in terms of the normative values that are protected and the way they are protected and International Law has been seen as the product of western tradition but that's because International Law exists in the centuries and as we know very well until a few decades ago the international society was composed of Christian states for the majority and it was only through the process of decolonization in the between the 50s, the 60s and, the 70s that international society has become something else this may be seen as history but it's very recent when it comes to the history of International Law and therefore the process of the colonization and the emergence of the new powers including from the Global South are necessarily challenging the traditional structure and institutions of International Law that developed since the peace of Westphalia 1648 so as you might imagine.

I think that we are in the process of transformation of International Law and its institutions and I think that the Global South is now pushing to make its voice heard, and we will see what will happen in the development of International Law for the future generations.

Asish: Of course, we will see what happens from the Global South perspective. Thank you so much for giving us that perspective about how the global South views International Law and then the nuances of it and the history of the evolution of international society as a whole, which we often tend to ignore or put under the brush in debates about International Law. We will talk about the present status of International Law while there is also an entire past of evolution, and when we take that into account, there is a democratic element that needs to be factored in.

To move towards the conclusion of this interview, as a scholar of International Law, how do you feel about your contributions to the field? You have generated a huge corpus of research and literature. How do you feel about your own contributions to international law? And how do you see the significance of your practice as an International Law expert in the evolution of International Law in the future with these emerging technologies etc.?

Prof. Paola: You may be surprised by my answer. I think my best role as an academic is to teach my students. I don't think that my major contribution should be primarily seen in my scholarship, I have tried to do my best, to be critical with a current institutions of international law and very critical vis-a-vis the security council and the other institutions of International Law the way technology is used in conflict.

But I don't think the best contribution I can give is in that respect, on the contrary, I very much believe in the current and future generations who can take an important role to try to better our current society international society and I have the privilege to teach at Geneva Graduate Institute where we have a sort of international student every year including from India and from every other corner of the globe and what I try to do is to do my best, to help to become the citizens of the world of the future and to have a better world.

Asish: Thank you, Professor. That's really inspiring to know, about how not only an expert but also an academic thinks about the onus of transferring value and information to the next generation about issues that matter to the world, issues that have shaped international debates and the world.

Thank you so much for your time, professor. Lastly, do you have any last message for young people and students who are interested in International Relations or International Law and are planning their Master's from that perspective?

Prof. Paola: My message is that if we look around us, we are very depressed by all the problems that we are facing, such as climate change, famine, etc. The list is so long that it becomes depressing to think about it, but I think that indeed we shall not be afraid to try to do our best, and because each of us in our individual little lives, can make a little difference.

There is no particular recipe or a magic solution that I have in my pocket, but certainly, I think that everybody with humbleness and honesty could make a difference, so I can encourage everyone not to become cynical about international institutions, because there is a risk of becoming cynical and to think that these institutions do not serve any purpose and that international law doesn't serve any purpose. I don't think that's true if we look behind us. We see how much international law society has progressed, thanks to the goodwill and humbleness of so many people, and I think we should do our best to be one of them.

Asish: That's a perfect note to end this interview, professor, and the entire Geostrata extends their heartfelt thanks to you in this tremendous effort of clarifying international law to young stakeholders across the world, across the Global South, across youth consequences that we cater to, and we ensure you that we would love to scale up this effort and take forward your voice and your explanation to young people across the world. Thank you so much again for engaging with us, and we look forward to keeping connected with you in the future.

Prof. Paola: Thank you so much for having me.

Watch the entire interview on the Geostrata's YouTube page

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BY ASISH SINGH

IN CONVERSATION WITH PROFESSOR PAOLA GAETA, PROFESSOR OF INTERNATIONAL LAW AT THE GRADUATE INSTITUTE GENEVA AND A MEMBER OF THE EDITORIAL BOARD OF THE JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE.

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