INTERNATIONAL
ORGANIZATIONS
LAW REVIEW
www.brill.nl/iolr
 Koninklijke Brill NV, Leiden, 2007 DOI: 10.1163/157237307X268018
Kadi Justice at the Security Council?
Jan Klabbers*
Professor of International Organizations Law, University of Helsinki. Director, Academy of
Finland Centre of Excellence in Global Governance Research.
I. Introduction
The decisions of the Court of First Instance (CFI) of the European Union, in September
2005, in the cases involving Messrs. Kadi and Yusuf highlight,1 if nothing
else, one of the more profound governance dilemmas. Should human rights be
respected even at the (possible) expense of effective governance? Or should effectiveness
of governance be preferred, even at the (possible) expense of the protection
of individual human rights?
Messrs. Yusuf and Kadi, as is well known, somehow found themselves on a
sanctions list adopted by the Security Council,2 and transposed into EU law: they
* A slightly different version of this essay will appear in the proceedings of the 2007 Joint Hague
Conference.
1) See Case T-306/01, Yusuf and Al Barakaat v. Council, 2005 E.C.R. II-3533; Case T-315/01, Kadi v.
Council, 2005 E.C.R. II-3649.
2) The Security Council in resolution 1267 (1999) created the Committee established pursuant to
Resolution 1267 (1999) concerning Al-Qaida and the Taliban and Associated Individuals and Entities.
It is this committee that ultimately decides on listing and possible de-listing of individuals and
entities, following a set of guidelines established by the Committee itself under instructions of the
Council. See Guidelines of the Committee for the Conduct of its Work, Security Council Committee
Established Pursuant to Resolution 1267 (1999) Concerning Al-Qaida and the Taliban and
Associated Individuals and Entities, available at <www.un.org/sc/committees/1267/pdf_guidelines.
pdf> [hereinafter Guidelines]. These Guidelines would appear to be fairly open-ended (perhaps
inevitably so), citing as possible bases for listing not just participation in terrorist acts of supplying
arms or recruiting, but also "otherwise supporting acts" and "other association." The latter two cast
the net rather wide.
International Organizations Law Review (2007) 1­12
2 Klabbers / International Organizations Law Review (2007) PP
were suspected of having some ties to possible terrorists in Afghanistan, and in
the name of the war on terror their bank accounts were frozen. In order to obtain
relief, they approached the Court of First Instance, the Security Council remaining
effectively out of reach. The Court decided, famously, that it has some authority
to review Security Council resolutions in case these violate jus cogens, but as the
violations complained of by Messrs. Yusuf and Kadi did not involve jus cogens
norms but merely the "lesser" norms of protection of property and the right to a fair
trial, the Court was unable to provide the sought for relief, and at any rate found
that the rights of messrs Yusuf and Kadi had not been violated, partly because in
the balancing between their rights and the rights of the victims of terrorism, their
rights did not weigh all that much.
A lot can be said about these decisions; a lot has already been said, and a lot
will no doubt be said once the appellate stage has been decided by the Court of
Justice.3 This piece will not concentrate on those cases per se; instead, it will explore
the underlying struggle between human rights protection and effectiveness
of governance. More concretely, it will explore, inspired by the name of one of the
applicants, whether the old idea of kadi justice, popularized (if that is the word)
by Max Weber) can serve any mitigating function. In doing so, it takes a different
route than, for instance, recent work by David Dyzenhaus. Where Dyzenhaus
argues that in times of emergency, the law nonetheless possesses the resources to
uphold the rule of law (black holes, in other words, are not part of the law), my
argument will look outside the law, in particular towards virtue ethics.4 I will use
the term kadi justice as a shorthand for the idea that meaningful and just judgments
need not always be based on the application of legal rules, but that justice
may sometimes be equally well served by decisions based on the individual senses
of right and wrong of those making the decisions, and that such a system may
usefully complement the Rule of Law. 5
In principle, the question outlined above ­ how to manage the tension between
effectiveness and respect for individual rights ­ provokes two further analytical
3) See generally Ramses A. Wessel, "The UN, the EU and Jus Cogens", 3 Inťl Org. L. Rev. 1 (2006).
Advocate-general Maduro proposes that the European Court of Justice set aside the CFI decision,
annul the specific EC regulation at issue in so far as it concerns mr Kadi, and repeal the underlying
general regulation. See his opinion in case C-402/05 P, Kadi v Council and Commission, 16 January
2008, not yet reported.
4) See David Dyzenhaus, The Constitution of Law: Legality in aTime of Emergency (2006). Incidentally,
Dyzenhaus does end up suggesting that the rule of law in times of emergency owes much to the attitude
and nerve of judges, which is in the end perhaps not all that far removed from my suggestion
that responsible governance demands responsible governors.
5) For a very useful recent study, applying a thin substantive notion of the Rule of Law to sanctions
regimes, see Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (2007).
3Klabbers / International Organizations Law Review (2007) PP
questions. The first of these asks who should decide in cases of tension: should
that be an international court? Should that be domestic courts?6 Should that
perhaps be someone or something else? The second question focuses, instead, on
how the tension should be approached. I will concentrate, for starters, on this
second question, but will get back to the first one as well, in full realization of the
circumstance that the "who" and the "how" can only be separated for so long; at
some point they collapse into each other. Before doing so, however, it is important
to sketch the normative scenery to some extent: how has international law (and
how have international lawyers) traditionally handled decisions of international
organizations, such as the ones central to the Yusuf and Kadi cases?
II. International Organizations: Contending Perspectives
Traditionally, the modus operandi of international organizations has been functionalism:
international organizations, so the prevailing theory went (and possibly still
goes), were creatures set up by states, with a view to exercising certain functions.
Those functions typically would consist of things that states alone were unable to
do on their own (for example, providing peace and security, and protecting the
environment), or perhaps were unwilling to do on their own (for example, opening
up markets). Either way, what mattered was the general notion that organizations,
big and small alike, political and technical alike, universal and regional alike,
were set up with a view to exercising a specific function, or set of functions. Its
functions would determine the sort of things the organization could do, and also,
importantly, determine the limits of what organizations could do. "Functional
necessity" became the key phrase in issues as diverse as the granting of privileges
and immunities and the extent of organizational powers, and could even have a
bearing on the legal personality of international organizations.7
This functionalism attained near-paradigmatic status amongst international
lawyers, and, as far as academic theories go, had one thing going for it: it had
a fairly large dose of explanatory force. It could help explain, for instance, how
6) For a useful discussion of (in particular) domestic implementation, see generally Andrea Bianchi,
"Assessing the Effectiveness of the UN Security Counciľs Anti-terrorism Measures: The Quest for
Legitimacy and Cohesion", 17 Eur. J. Inťl L. 881 (2006).
7) Much of the theoretical basis is provided in a short piece by Virally. See generally Michel Virally,
"La notion de function dans la théorie de ľorganisation internationale", in Mélanges offerts  Charles
Rousseau: la communauté internationale 277 (Suzanne Bastid et al. eds., 1974). Arguably, the main
centre of functionalism was the University of Leiden Law School, where under guidance of the late
Henry Schermers many functionalist works have seen the light, crowned by what is undoubtedly
the leading general treatise in the field, Henry G. Schermers & Niels M. Blokker, International
Institutional Law (4th rev. ed. 2003).
4 Klabbers / International Organizations Law Review (2007) PP
sovereign states could entrust their futures to international organizations without
losing any of their sovereignty. They could do so because sovereignty and functions
can be neatly separated; it is an attribute of sovereignty, to paraphrase the
World Court, to delegate the exercise of certain functions to others.8 Functionalism
could also help explain the extent of powers of organizations: no more than
would be necessary for their functioning ­ and nothing less either. Functionalism
could also be instrumental, albeit in an open-ended sort of way, in delimiting the
scope of privileges and immunities of organizations. The explanatory force would
reach its limits though with the EU which, after all, cannot be explained in any
meaningful way as the delegation of functions by sovereign states: it needs a different
explanation, something functionalism implicitly recognized by labeling the
EU, meaningfully yet also meaningless, as sui generis.9
For all its explanatory potential though, the one thing functionalism lacks is a
normative dimension: it does not indicate what constitutes acceptable behaviour,
and what is unacceptable. It is, in a sense (and like so much international law),
form without substance. Functionalism suggests that whatever states want their
creatures to do is fine, even if those creatures would have the ambition of conquering
the world.10 The one and only limit functionalism can present is the limit
of functioning, but that is dependent on the wishes of political masters, not on
any normative consideration. In other words, every political act can, potentially,
be justified under functionalism as being necessary; and for a long time, pretty
much every political act was so justified. The normative climate prevailing in
the post-Second-World-War world held that organizations could do no wrong.
In the words of prominent international lawyer Nagendra Singh, organizations
8) The PCIJ famously determined in the Wimbledon case, in 1923, that treaty-making was not contrary
to sovereignty but was, instead, an attribute of sovereignty. See Jan Klabbers, "Clinching the
Concept of Sovereignty: Wimbledon Redux", 3 Austrian Rev. Inťl & Eur. L. 345 (1998) (providing a
discussion of this point).
9) Note however that functionalism says nothing very specific about the specific modalities of delegating
functions and powers; on this, the leading work is by Sarooshi. See Dan Sarooshi The United
Nations and the Development of Collective Security: The Delegation by the UN Security Council of its
Chapter VII Powers (1999); Dan Sarooshi, International Organizations and their Exercise of Sovereign
Powers (2005). Nor does functionalism have much to say about processes by which organizations
may end up expanding their mandates. On this, bureaucracy theory may be more helpful, as noted
by Barnett and Finnemore. See generally Michael Barnett & Martha Finnemore, Rules for the World:
International Organizations in Global Politics (2004).
10) Reportedly, Mussolini presented a draft treaty in the 1930s, to be concluded by Europe's four
major powers with the aim of bossing Europe's smaller states around. See Remco van Diepen, Voor
Volkenbond en Vrede: Nedwerland en het Streven Naar een Nieuwe Wereldorde 1919-1946 143 (1999).
5Klabbers / International Organizations Law Review (2007) PP
contribute to the "salvation of mankind."11 As a result, the very idea of exercising
judicial review over international organizations never really presented itself, and
when it did, it was immediately shot down ­ witness the explicit rejection by the
ICJ in its Namibia opinion.12
The growing scope of activities of international organizations (which nowadays
engage in such activities as territorial administration), the re-awakening of the
mechanisms of peace and security accompanying the end of the Cold War (not
just the Security Council, but NATO too, and even the Western European Union
(WEU) arose from its slumber to be devoured by a newly ambitious EU13), and
the collapse of the International Tin Council during the mid-1980s all suggested
that organizations are, in the end, run by humans, and that humans are errorprone.
Moreover, with the liberal social-democratic welfare state in retreat and
national public authority being eyed suspiciously, it was only to be expected that
international organizations too would come to be regarded with suspicion. After
all, much as they may present themselves as independent from their member states
and have a separate identity, they are also, from a different angle, emanations of
their member states and themselves exercising public authority.14
Hence, it should not come as a surprise that slowly a different set of ideas is
taking hold, which conveniently is lumped together under the heading of constitutionalism.
The collapse of the International Tin Council spurred a flurry of
activity into analyzing issues of responsibility of international organizations.15 The
Security Counciľs decisions regarding the bombing of an airplane over Lockerbie
created a renewed interest in judicial review.16 The open-ended nature of the func-
11) Nagendra Singh, Termination of Membership of International Organisations, at vii (1958).
12) See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 89
(June 21) ("Undoubtedly, the Court does not possess powers of judicial review or appeal in respect
of decisions taken by the United Nations organs concerned.").
13) On the latter, see generally Ramses A. Wessel, "The EU as Black Widow: Devouring the WEU
to Give Birth to a European Security and Defence Policy", in The EU and the International Legal
Order: Discord or Harmony? 405 (Vincent Kronenberger ed., 2001).
14) Elsewhere I suggest that much of the law of international organizations finds its origins in this
tension between the organization and its member states. See generally Jan Klabbers, An Introduction
to International Institutional Law (2002); Jan Klabbers, "Two Concepts of International Organization",
2 Inťl Org. L. Rev. 277 (2005) (providing a more detailed theoretical elaboration).
15) See generally Romana Sadurska & Christine Chinkin, "The Collapse of the International Tin
Council: A Case of State Responsibility?", 30 Va. J.Inťl L. 845 (1990).
16) See e.g., Geoffrey Watson, "Constitutionalism, Judicial Review, and the World Court", 34 Harv.
Inťl L. J. 1 (1993); Jan Klabbers, "Straddling Law and Politics: Judicial Review in International Law",
in Towards World Constitutionalism 809 (D.M. Johnston & R.St.J.MacDonald eds., 2005).
6 Klabbers / International Organizations Law Review (2007) PP
tional necessity doctrine in relation to organizational privileges and immunities
was questioned.17 Organizations came to be involved in human rights failures,
either by omission (think Rwanda18 and Srebenica) or by commission.19 Courts
started to find that the powers of international organizations were not unlimited.20
Functionalism therewith slowly came to be accompanied by constitutionalism. The
notion would remain somewhat vague and open to different interpretations, and
much of it would be inspired by not always appropriate direct comparisons with
domestic versions of constitutionalism, but nonetheless, the message was clear:
the boundless freedom of maneuver that international organizations had enjoyed
was coming to a close. Somehow, the insight had taken hold that there might be
merit in exercising control over international organizations.
As far as normative developments go, the rise of constitutionalism was thoroughly
understandable, but as an academic theory it lacks explanatory force.
Constitutionalism can help explain limits to organizational activities, but has fairly
little relevance for explaining other aspects of the functioning of international
organizations. Constitutionalism may help explain why the UN, when administering
East Timor or Kosovo, should behave well, but cannot help explain why
the UN can administer territory to begin with. For this, functionalism is still the
stronger theory.
Moreover, constitutionalism cannot deliver on its promises all by itself, and to
some extent is bound to reproduce the same anxieties a pre-constitutional doctrine
saw itself confronted with.21 For one thing, not everything can be captured in
rules, constitutional or otherwise: think only of the difficulties international law
has encountered in trying to define such key notions as aggression, terrorism, or
genocide. More important though for present purposes, inasmuch as ordinary rules
can usually be circumvented if the actors involved feel circumvention is somehow
necessary in view of a certain goal, so can rules of a constitutional nature. An ample
illustration is formed by the Emergency Aid decision of the European Court of
17) See Michael Singer, "Jurisdictional Immunity of International Organizations: Human Rights and
Functional Necessity Concerns", 36 Va J. Inťl L. 53 (1995).
18) An excellent discussion of the UN's inactivity in Rwanda is contained in Barnett & Finnemore,
supra note 8.
19) See Frédéric Mégrét & Florian Hoffmann, "The UN as a Human Rights Violator? Some Reflections
on the United Nations Changing Human Rights Responsibilities", 25 Hum. Rts. Q. 314 (2003).
20) See generally Jan Klabbers, "The Changing Image of International Organizations", in The Legitimacy
of International Organizations 221 (Jean-Marc Coicaud & Veijo Heiskanen eds., 2001).
21) See generally Jan Klabbers, "Constitutionalism Lite", 1 Inťl Org. L. Rev. 31 (2004).
7Klabbers / International Organizations Law Review (2007) PP
Justice in the early 1990s, in which the Court set aside the strong rules on decisionmaking
within the EU without, so it seems, there being a proper justification.22
In a word, responsible governance requires responsible governors; it demands
people in positions of power who resist hubris and who resist the temptation to
have the ends justify the means. Functionalism by its very nature is unable to
provide this; if anything, it invites hubris, by its inability to posit any normative
limits. Constitutionalism alone cannot close the gap, but needs to be accompanied
(not replaced) by something else, a constitutional mindset,23 if you will, and this
may well be inspired not so much by deontological, rule-based philosophy,24 but
rather from virtue ethics ­ the sensibility to do the right thing, to act on proper
motives.25
III. Weber on Kadi Justice
While there are probably as many versions of virtue ethics as there are virtue ethicists,
a (formerly) well-known expression thereof was embedded in the notion of
kadi justice, made famous by Max Weber (and others).To the extent that kadi justice
is written about these days, it is usually with a pejorative undertone: somehow,
it is thought of (if at all) as the impoverished cousin of true justice. True justice,
so we tend to think, has something to do with the Rule of Law and, whatever its
contents, has to be rule-based. The Kantian legacy exercises a strong hold on legal
and philosophical minds alike. Kadi justice, by contrast, is explicitly not rule-based,
and therewith considered somehow less useful in our day and age.
This is a double mistake. First, Weber himself was never pejorative about kadi
justice. To him, kadi justice accompanies an ideological interest in substantive
justice: justice with respect to outcomes, that is, rather than otherwise. By contrast,
formal justice insists on things like stability and predictability, and is therefore
often associated with the development and maintenance of capitalism, and with
the Rule of Law. Kadi justice, so Weber held, entails decisions "reached on the
basis of concrete, ethical, or political considerations or of feelings oriented toward
22) See Cases C-181/91 & C-248/9, European Parliament v. Council and Commission, 1993 E.C.R. I-3685
(the ECJ characterizing a measure to grant emergency aid to Bangla Desh as a collective decision
taken by the member states, despite the measure involving the Community institutions to a fairly
large extent, rather than as a Council act).
23) The term is borrowed from Martti Koskenniemi, "Constitutionalism as Mindset: Reflections
on Kantian Themes About International Law and Globalization", 8 Theoretical Inquiries in Law 9
(2007).
24) This is the foundation for the argument made by Dyzenhaus, supra note 4.
25) See generally Virtue Ethics (Roger Crisp & Michael Slote eds., 1997).
8 Klabbers / International Organizations Law Review (2007) PP
social justice."26 An historical example would be the form of justice prevailing in
ancient Athens; more current examples include trial by jury, or the work of justices
of the peace.27 These represent, as Weber put it, "a softening of rationality in the
administration of justice."28
Second, dismissing kadi justice out of hand is mistaken because doing so
would fail to take context into account. Put differently, formal justice (what we
typically refer to as the Rule of Law) is inextricably linked to the development
and maintenance of capitalism.29 Already the Romans had realized that in order
to have a well-functioning economy, what is required is not so much substantive
justice (doing the right thing), but rather a rational, quick, effective procedure
for dispensing with disputes. As Weber maintains, what we borrow from Roman
law is not so much linked to substance,30 but relates to trial procedure and the
need to have trials executed by people with legal training. As Weber wrote, "This
necessity arose from the increasing complexity of legal cases and the demands of
an increasingly rationalized economy for a rational procedure of evidence rather
than the ascertainment of the truth by concrete revelation or sacerdotal guarantee
which everywhere was the primeval means of proof."31 And elsewhere he was even
more explicit: while of course something resembling capitalism (private trade
relations) could also develop in systems where forms of justice such as kadi justice
prevailed, nonetheless modern capitalism cannot accept kadi justice. Modern
capitalist enterprises, "with their fixed capital and precise calculations, are much
too vulnerable to irrationalities of law and administration."32
The main lesson to draw from all this, then, is not so much that kadi justice is
by definition a bad thing, the lesser cousin of our Rule of Law. Quite the contrary,
Weber suggests that our heralded Rule of Law, often cherished for its own sake, is
26) See Max Weber, Economy and Society 813 (Guenther Roth & Claus Wittich eds., 1968). Later, he
briefly defined kadi justice as "adjudication according to the judge's sense of equity or according
to ... other irrational means of law-finding ...". Id. at 1395. For a useful discussion, see David M.
Trubek, "Max Weber on Law and the Rise of Capitalism", Wis. L. Rev. 720 (1972).
27) See Weber, supra note 25, 813-14.
28) Id. at 891. Horwitz adds the example of the classic distinction between law and equity, without
explicitly calling equity kadi justice. See Morton J. Horwitz, The Transformation of American Law
1870-1960: The Crisis of Legal Orthodoxy 17 (1992).
29) See also Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 97 (2004) (summarizing
Weber in a single sentence as holding that "capitalism requires a formal rule-oriented legal system
in order to provide the security and predictability necessary for market transactions").
30) See Weber, supra note 25, at 977 ("In fact, all legal institutions specific to modern capitalism are
alien to Roman law and are medieval in origin," as he put it with some aplomb).
31) Id. at 977.
32) Id. at 1395.
9Klabbers / International Organizations Law Review (2007) PP
best seen as instrumental, in particular in relation to the development of modern
capitalism. The Rule of Law, following Weber, would have perhaps a contingent
relation with justice, but its main point was to facilitate the rise and maintenance
of capitalism. The point of the Rule of Law would be to create the sort of certainty
conducive to the development of intense economic relations between private actors,
regardless perhaps of the precise content of the legal rules thus created. What matters
is that there are legal rules and a system for settling disputes in a predictable
manner so that private actors know what to expect. The upshot would be then
that there might be a role to play for kadi justice in those circumstances where the
Rule of Law is absent or, alternatively, in those circumstances where there is no
instrumental connection to the capitalist world economy and its needs.
IV. Kadi Justice Implemented?
The Sanctions Committees established by the Security Council typically decide on
the basis of often classified information, following rather open-ended guidelines
and upon proposals by state representatives.33 No independent investigation takes
place before an individual is blacklisted, and the procedure for being de-listed is
equally troublesome. Judicial review within the UN system is non-existent, and
outside the system it is highly doubtful whether judicial review, be it by domestic
courts or by an entity such as the Court of First Instance (CFI) of the EU, can
be meaningful.
This then would seem to cry out for an analysis in terms of the Rule of Law,
and indeed, normatively speaking, many would agree on the desirability of subjecting
the Security Council to the Rule of Law, both as far as substance goes (in
that the Rule of Law would entail limits on the freedom of the Council to do as
it pleases) and in relation to procedure. Under the Rule of Law, however precisely
conceptualized, it would be plausible to think of procedural restraints on the
Security Council.34
However, if Weber was correct in establishing the connection between the Rule
of Law and the emergence and maintenance of capitalism, then it would seem
that as an instrumental matter, there is no particular need to insist on the Rule of
Law as controlling the Security Council. Given that the Security Council has, as
yet, fairly little to do with the emerging globalized system of capitalism (beyond
the abstract proposition that peace and security may be conducive to business
33) See Guidelines, supra note 2.
34) The leading account of what the Rule of Law might entail is T.R.S. Allan, Constitutional Justice:
A Liberal Theory of the Rule of Law (2001).
10 Klabbers / International Organizations Law Review (2007) PP
transactions generally35), there is no particular instrumental need to insist on the
Rule of Law. This takes nothing away from the normative desirability of installing
the Rule of Law; it merely opens up space to explore other, alternative mechanisms
and conceptions of justice.
In these circumstances, there might be some merit in considering whether
some form of kadi justice might not be a useful alternative. In fact, the circumstances
might be eminently suitable for purposes of kadi justice, as at issue is not
so much the semi-automatic application of an established body of law, but rather
the constant balancing, in each and every case, of effectiveness and human rights
protection. The very circumstances involving sanctions might not be all that suitable
for formal justice to begin with. However, that does not mean that no substantive
justice needs to be done in individual cases.
Hence, installation of a system of kadi justice might be appropriate. It would
not need to go under this name perhaps; it is more common, also in international
affairs, to appoint panels of wise men (or women) to decide on issues where a strict
application of legal rules might be awkward or, more often perhaps, lead to awkward
results.36 Such panels would have two main characteristics. First, they would
be composed of trusted individuals, people of high moral standing and authority.
Second, they would decide not on the basis of an accepted set of rules, but rather
on the basis of their own sense of equity, or justice, or fairness. Hence, it might
be best not to entrust lawyers with the task, as lawyers are bound to fall back on
the rule-book fairly quickly, and for the same reason, trained moral philosophers
and theologians might be less than ideal candidates.37
One risk, of course, in installing a system of kadi justice is the risk that once
the "lesser" is in place, the "better" (i.e. the Rule of Law) stands no chance of being
installed anymore. This is, however, a risk of debatable dimensions. For one
thing, chances for the Rule of Law at the UN appear slender at any rate: as long as
individuals close to the US government can characterize the plight of people like
35) It is no coincidence that the traditional law school curriculum, geared to accommodate 19th
century laissez faire capitalism, included criminal law among its core topics, along with contract,
torts, property, and civil procedure. See generally Duncan Kennedy, "Legal Education and the Reproduction
of Hierarchy", 32 J. Legal Educ. 591 (1982).
36) An example is the panel of wise men installed by the EU to verify whether the election of a rightwing
regime in Austria was at all reconcilable with some of the principles the EU is said to be based
on. Likewise, the creation of the Badinter commission by the EU during the Yugoslavia crisis owed
much to similar considerations.
37) By way of hypothetical example, how about a panel composed of Nelson Mandela, former football
star Ruud Gullit, and pop icon Madonna? Or one consisting of the Dalai Lama, Gro Harlem
Brundtland, and Mary Robinson?
11Klabbers / International Organizations Law Review (2007) PP
Mr. Yusuf and Mr. Kadi as "public relations" problems, one is best advised not to
hold one's breath when it comes to the full-fledged Rule of Law.
Second, it is by no means self-evident that kadi justice is the lesser version.
As mentioned, Weber never thought of it in pejorative terms, and its continued
manifestation in the form of trial by jury would suggest that given the right circumstances,
kadi justice too has something going for it. The one thing to realize,
of course, is that kadi justice is far less suitable for facilitating global capitalism
than the Rule of Law is, but that says more about the Rule of Law perhaps (and
some of its less thoughtful proponents) than about kadi justice.
That said though, and referring back to the earlier discussion of functionalism
and an emerging constitutionalism in the law of international organizations, even
a full-fledged Rule of Law would offer no airtight guarantees. Even full-fledged
constitutions can be, and often enough are, circumvented. Within international
institutional law, a concept of kadi justice would serve not so much as a substitute
for the Rule of Law, but rather as a complement; its inspiration, after all, resides
in virtue ethics as a complement to constitutionalism, precisely so as to help constitutionalism
to overcome its internal paradoxes and weaknesses. Responsible
governance, after all, requires responsible governors, and establishing kadi justice
might be one way of ensuring that those who govern (the Sanctions Committees)
behave responsibly.
There is an additional consideration why kadi justice, in this context, cannot be a
substitute but must be seen as a complement. The fight against terror, whatever the
plausibility of its justifications, tends to stimulate a general climate of lawlessness.
As the philosopher Giorgio Agamben puts it, it serves as a veneer for governance in
a continuous state of exception, where law (the Rule of Law, no less, to the extent
it exists to begin with) is continuously suspended; a situation is being created "in
which the emergency becomes the rule, and the very distinction between peace
and war (and between foreign and civil war) becomes impossible."38
Agamben here explicitly addresses the United States (the name of President Bush
precedes the quote just given), but the argument is capable of wider application:
within the Security Council too, it seems that law is a matter, continuously and
constantly, of living on a knife's edge: there is no law, there are only decrees, to be
applied by the powers that be. However disputed the precise contents of the Rule
of Law may be (and they are, of course, constantly open to debate), nonetheless the
UN cries out for installation of some conception of the Rule of Law, normatively
38) See Giorgio Agamben, State of Exception 22 (Kevin Attell trans., University of Chicago Press 2005)
(2005).
12 Klabbers / International Organizations Law Review (2007) PP
if not instrumentally. Kadi justice may stop the bleeding, but cannot be expected
to heal the wounds.
V. By Way of Conclusion
There is one final irony here: the very emergence of constitutionalism, with its
emphasis on the control of international organizations, means that organizations
are perhaps less likely to be considered the harbingers of peace and welfare or otherwise
involved in the salvation of mankind. The more member states control and
direct their organizations (and it seems reasonably clear that the Security Council
is dominated by the US), the more those organizations end up doing the dirty
work of states. Constitutionalism thus, however inadvertently, contributes to the
"running wild" of international organizations ­ not "running wild" because of
too little control, but "running wild" due to too much control. If anything, this
illustrates that the law of international organizations is to a large extent a matter
of the precise links between two dominant conceptions: those of the organization,
functionalism, and a managerial mindset on the one hand, and those of the
member states, constitutionalism, and a more deliberative mindset on the other
hand. In this potential minefield littered with theories, conceptions and approaches
but fairly little law, a conception of kadi justice may well prove to be of some use.
And that too is not without irony.