s.IX Future(s), Ch.36 International Criminal Law: The Next Hundred Years

This chapter maps out some of the broader conversations among the rest of the chapters in this volume. As a whole, this work reveals some quite dissonant moods around the health and future of international criminal law. The field (especially its practice in Tribunals) is in many ways experiencing a period of decay, backlash, recession, and anti-climax. And yet this chapter identifies a burgeoning popular interest, and a flourishing and illuminating academic literature. This chapter sketches three different registers among the contributions in this volume: reformist hope, unfriendly skepticism, and—wavering between the two—critical affinity. It also outlines some of the lines of response from supporters of international criminal law, although it does not find the main lines of defence particularly convincing.

s.VIII Boundaries, Ch.33 The Core Crimes of International Criminal Law

The ‘core’ crimes set out in the International Criminal Court’s Rome Statute - the crime of genocide, war crimes, crimes against humanity and aggression - are overwhelmingly assumed to be the most important international crimes. In this chapter, I unsettle the assumption of their inherent importance by revealing and problematising the civilizational, political-economic, and aesthetical biases behind designating these crimes as ‘core’. This is done by shedding light on discontinuities in the history of the core crimes, and unsettling the progress narrative ‘from Nuremberg to Rome’. More specifically, crimes associated with drug control are placed in conversation with the accepted history of the International Criminal Court (ICC) to exemplify a systematic editing of the dominant narrative of international criminal law.

s.VII Anxieties, Ch.28 Hangman’s Perspective: Three Genres of Critique following Eichmann

This chapter takes Adolf Eichmann as an object of study in subjecting international criminal trials to three types of critique. First, adopting the perspective of the rule of law, this chapter engages with Hannah Arendt’s writing on the Eichmann trial to argue that international criminal trials are constantly suspected of becoming ‘show trials’. Second, turning to Shoshana Felman’s work, the chapter identifies a genre of critique according to which international criminal justice is premised on an experience of catharsis, in which the trauma of atrocity’s victims is alleviated (constituting a post-atrocity political community). Finally, this chapter analyzes a 2010 film that reveals the trauma of the man who executed Eichmann, to show the unacknowledged risks of wielding the violence of criminal justice. Based on this ‘hangman’s perspective’, the chapter suggests assessing international criminal trials in light of questions about the transnational allocation of such risks and about preexisting inequalities—economic, ethnic, and other—that determine the roles different people will end up playing in trials.

s.VI Narratives, Ch.22 Historical Reasoning and Judicial Historiography in International Criminal Trials

This chapter explores the overlaps and differences between historical reasoning and judicial historiography. It takes the reader from Nuremberg to the International Criminal Court to show that judicial proceedings have been a major site for the development of both micro- and macro-level histories, sometimes problematically so. The chapter addresses if, how, and to what extent macro-historical interpretations permeated the high-profile proceedings at Nuremberg and Tokyo and helps explain their dynamics and outcomes. This pattern was repeated in domestic trials of Nazi-era crimes throughout the post-war decades, yet largely overlooked in the creation and day-to-day operations of the ad hoc tribunals that sprang to life in the 1990s and early 2000s. To conclude, the chapter suggests that this unawareness may explain some of the Tribunals’ shortcomings and needs to be reflected by both lawyers and historians if the ICC is to avoid even more criticism than that levelled against it since its inception.

s.IV Crimes, Ch.13 A Theory of International Crimes: Conceptual and Normative Issues

The quest for a unified account of international criminalization is an important part of a compelling general theory of international criminal law (ICL). Any such account would need to have a conceptual and a normative dimension. This chapter addresses these two dimensions in turn. At a conceptual level, it argues that international crimes are criminal prohibitions provided under international law that apply globally. This entails, first, that perpetrators of these crimes can be brought to justice by any national authority as well as by international and regional tribunals with no traditional connection to the crime, the perpetrators, or the victims. Second, that they can be brought to justice on the basis of international law alone, irrespective of the specific legislation of any national authority allowing or even mandating such conduct. At a normative level, it argues that international crimes must be justified before the affected political community within which they take place. Ultimately, extraterritorial jurisdiction over them is based on the fact that international criminalization contributes to the well-being of individuals in different parts of the world by communicating that they are the bearers of fundamental legal rights and that those rights are protected by international law. This symbolic function is particularly important because international crimes are perpetrated, instigated, or allowed by the state within which they are perpetrated, or this state cannot do anything about them. ICL thus provides individuals an important benefit that domestic criminal justice systems cannot provide on their own.

s.III Rationales, Ch.9 Taking Internationalism Seriously: Why International Criminal Law Matters

This chapter focuses on why international criminal law (ICL) matters, by generating a distinctive philosophical vision for the project of international criminal justice. Specifically, this chapter rejects the notion that ICL is simply a gap-filler for ineffective penal institutions at the domestic level. So much of the literature is characterized by an assumption, buttressed by the International Criminal Court’s complementarity principle, that international tribunals simply spring into action to resolve the lacunae in domestic legal processes when armed conflict or other disruptions dismantle traditional institutions for criminal enforcement. In contrast, the chapter argues that the goods of ICL and the values it promotes can only be provided by international entities. In that respect, international justice is not a second-best alternative to domestic justice but is, rather, necessarily international because international institutions are specifically designed to redress wrongs that harm the interests of the international community as a whole.

s.II Spaces, Ch.6 Legitimacy in War and Punishment: The Security Council and the ICC

UN Security Council referrals are a legally sufficient basis for International Criminal Court (ICC) action under the Rome Statute and the United Nations (UN) Charter. However, the fact that each permanent member of the Security Council can veto any such referral and that three of those states have declined to ratify the Statute poses a legitimacy problem for the Court. Specifically, it undermines the Court’s moral standing to judge and thus its capacity to deliver on its core function. Because of both the structure and function of the Court, the privileged position of the Council’s permanent members is more undermining of ICC legitimacy than it is of Council-authorized military action in response to atrocity, and even than it was of the ad hoc tribunals created by the Council. One way to remedy this situation would be to vest the ICC with universal jurisdiction. Alternatively, the Court’s legitimacy would be enhanced if Security Council referrals were removed from the Statute. Those, however, are unlikely amendments. More modestly, the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test.

s.I Actors, Ch.3 Neither Here nor There: The Position of the Defence in International Criminal Tribunals

This chapter argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-à-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. It identifies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law. Procedural balancing primarily involves de-emphasizing the importance of defence rights by elevating the (assumed) rights of other actors in the system. Institutional balancing relates to the structural position of the defence at international tribunals. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, this chapter suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts.

s.VII Anxieties, Ch.29 Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy

This chapter discusses a communicative advantage for ‘defiant defendants’, otherwise known as the ‘inequality of arms reversed’. A common critique of international criminal justice is that international criminal trials, when faced with high-profile and charismatic defendants, are basically doomed: either they silence the defendant’s political rhetoric and become show trials, or they let the defendant speak of the bias and inconsistencies in their institutional set-up, thus equally imperilling their legitimacy. This chapter argues that international criminal courts are not doomed by the reverse inequality: the communicative outcomes of international criminal trials remain contingent. For instance, prosecutors can make arguments that are politically and culturally attuned to local audiences. Moreover, the procedure of the trial can influence the defendant’s attitude. This chapter contends that it is possible for prosecutors and judges to acknowledge the political dimension of international criminal processes without turning them into show trials. Indeed, it is desirable for judges and prosecutors to confront the politics of the defendant head on.

s.V Modalities, Ch.16 A Criminological Approach to the ICC’s Control Theory

This chapter tackles the Control Theory of Perpetration, a German-inspired mode of participation that is applied only by the International Criminal Court (ICC). The Control Theory, developed by the German scholar Claus Roxin, provides a doctrinal apparatus for distinguishing between principal perpetrators and mere accomplices. Instead of defining the principal perpetrator as the individual who performs the actus reus of the offence, or who has the mens rea for the offence, the Control Theory states that they who control the crime are the principal perpetrator, even if that person uses another individual, or even an organization, to carry out the crime. Although much has been said of this mode of liability, this chapter considers a far broader question: whether the Control Theory as applied by today’s ICC (or by other courts that have adopted it) accords with the social reality of how atrocities are committed. In other words, this chapter does not consider whether the Control Theory is a good criminal law theory, but rather whether it could pass a criminological test..