Search Results

This chapter examines the evolution of international criminal justice, from the earliest known tribunal to the International Criminal Court. It traces arguments supporting and criticizing these tribunals, from both legality and legitimacy perspectives, and explores the implications for the relationship between the two concepts. The Nuremberg and Tokyo trials are seen as a strong example of legitimacy trumping legality, forcing international law to address the gaps they highlighted. The trials were exceptional, unprecedented measures, which were nevertheless seen as preferable to the two alternatives of amnesty or extrajudicial executions. They suffered from numerous legality failings related to their establishment and fundamental flaws in legal procedure, while their legitimacy was also lacking in terms of impartiality, objectivity, and hypocrisy. But despite these shortcomings, they gradually gained widespread legitimacy by contributing to sustained peace in Germany and Japan and implementing the concept of individual criminal accountability in international law.

The chapter challenges the idea that the ad hoc Tribunals and the ICC represent the ‘“progressive cosmopolitanisation” of international law’. Two interrelated arguments are made: first, the extended reach of legality, as it concerns limitations on the use of force in the international system, remains restricted by factors explained by classic conceptions of state sovereignty and state interests; and second, while instituting legal mechanisms to punish individual violations of international humanitarian law (IHL) challenges historically established norms regarding the way that states use force, constraints on the use of violence are best understood through ‘pluralist’ interpretations of the sovereign right to use force and the sovereign right of non-interference. Thus, while it is clear that new mechanisms of justice have increased the efficacy of IHL, the state remains the primary arbiter with regards to punishing violations of the laws of war

This chapter considers the means that are made available for the execution of the mandate. It provides a comprehensive overview of funding mechanisms and budgets of international tribunals as well as internal cost allocation between the different court organs. It also ‘follows the money’ and presents cost tabulations and comparisons. After nearly twenty years of experimenting it is clear that international criminal justice does not come cheap.

International criminal justice relies on messages, speech acts, and performatives practices, in order to convey social meaning. This introductory chapter sets this phenomenon into perspective. It argues that expression and communication are not only an inherent part of the punitive functions of international criminal justice, but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. This account provides a novel lens to explain many of the complexities, weaknesses, and hidden contradictions of international justice. It highlights at the same time risks and tensions, such as the self-referential nature of meaning production, the use of binaries or stereotypes in legal discourse, the displacement of alternative truths or frames of reference or the creation of new social hierarchies. The social responsibilities and communicative structures that come with the expressive turn need to be re-visited.

In this chapter, Meron addresses the question of whether international criminal justice works, based on his experiences as judge on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. He sets forth and evaluates four criteria: how successful we are in finding and trying suspected perpetrators of international crimes; the extent to which we are providing these accused a fair trial; whether and how we are deterring further international crimes; and whether and how effectively our actions are promoting peace and healing in the affected region.

This chapter situates the book within existing scholarship concerning the historical function of international criminal courts and introduces the book’s analytical perspective, namely the characterisation of international criminal courts as confrontational terrains that are host to struggles for historical justice—intense contests in which a range of different actors vie for judicial acknowledgement of their preferred interpretations of the past. In order to facilitate a critical examination of these struggles, the chapter elaborates a framework for exploring how the situated choices of different actors have influenced the scope and content of judicially constructed historical narratives in different institutional contexts. The framework identifies the actors involved in struggles for historical justice, the questions around which such struggles tend to be structured, and the practices through which such struggles are conducted.

The International Criminal Tribunal for the former Yugoslavia (ICTY), which was established in 1993 as a temporary judicial body, is due to be phased out by 31 December 2014. This chapter reviews some aspects of its brief career. The Security Council established the ICTY on behalf of all members of the UN. While the jurisdiction of the ICTY has primacy over national jurisdictions, the Statute of the ICTY recognizes that the complete administration of international criminal justice will require the participation of national courts. The ICTY was established to deal with a problem which arose in one continent; so, too, with the International Criminal Tribunal for Rwanda. However, the jurisprudence produced by these unique experiments in the field of the administration of international criminal justice will be universally useful.

International criminal justice has barely engaged with the discipline of criminology, and vice versa. Probably this is because the phenomenon of international crimes is viewed within the field as more a matter of politics than sociology. On the legal side, there is an attempt by some of the lawyers to exclude the social sciences, by reducing prosecution to absolute principles and dismissing the relevance of factors such as peace building, reconciliation, and social reinsertion of offenders. Sometimes this is done in the name of legal rigour and sometimes its proponents invoke the rights of victims as justification. This chapter argues that international criminal law could benefit from greater openness to the social sciences. Criminologists might break some paths here by developing more sophisticated approaches to the specifics of crime when perpetrated in time of conflict, or by brutal regimes.

This chapter begins with a discussion of the legitimacy and legality of the International Criminal Tribunal for the former Yugoslavia (ICTY), covering the role of the Security Council, the mandate of the ICTY, and the issue of victors's justice. The discussions then turn to the legal character of the ICTY and its personnel (the President, the Prosecutor, judges, the Registrar).

This chapter addresses the justification for the existence of a system of international criminal justice. For present purposes, it considers a hypothetical penal system akin to the International Criminal Court, established under the Rome Treaty in 1998. Such a system would deal with serious human rights violations, and have international jurisdiction. Its governing statute or treaty would define and proscribe such crimes, and establish an international court with authority to prosecute these offences and impose punishment of those convicted. Its sanctions would be guided by principles of individual culpability; and also of proportionality with respect to the seriousness of the crimes involved. There would be explicit standards or guidelines concerning the scaling of punishments. The question for this chapter is whether, in principle, the establishment of such a system of international criminal justice is justifiable, and why.

This concluding chapter focuses on two cross-cutting themes that inform every single chapter: firstly, the political sensitivity and dimensions of the prosecutor's work; and, secondly, the prosecutor's relationship with the many other actors in the field of international criminal justice such as the Security Council, states, the other court organs and the defence, victims, the prosecutor's own staff, transitional justice actors, the academic community, and the wider public. It suggests a number of best practices and topics for future research.

The debate about concerns surrounding the efficiency and legitimacy of international (criminal) courts has been joined by a new voice, judicial declarations on how proceedings can be expedited and the legitimacy deficit resolved, in particular the Paris Declaration of 2017 and the Oslo Recommendations of 2018, which deal with “enhancing their institutions’ legitimacy in the eyes of diverse stakeholders.” This article queries in detail whether either document manages to do that, as well as the emerging lens of “external stakeholder benevolence.” It argues that a traditional stakeholder theory approach must break down when the decision about the interest (fair trial) against which other stakeholders’ interests are to be balanced has been assigned exclusively to one stakeholder (judges), barring other stakeholders from encroaching on that stakeholder’s position (judicial independence). The judicial perspective on stakeholder-theory-based attempts at defining the parameters of the judicial core environment will thus always be one of intrusion.

This chapter introduces the book’s consideration of how international criminal courts have confronted the past in different institutional contexts. The chapter provides a chapter-by-chapter overview of the book’s central themes and arguments. The book is concerned with the historical function of international criminal courts—their role in the construction of historical narratives concerning both the culpability of the accused on trial and the broader mass atrocity context in which they are alleged to have participated. This historical function raises a number of questions concerning the scope and content of the historical narratives constructed within international criminal judgments, the actors that exert influence over such processes, and the extent to which such histories are consistent and authoritative both within and beyond the courtroom. This book aims to address these questions by examining how the past has been confronted within three sets of international criminal courts: first, the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East at Tokyo; second, the United Nations ad hoc tribunals, namely the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone; and finally, the International Criminal Court. By critically examining the scope and content of the histories constructed within the judgments of these courts and by surfacing the influence of different actors and contexts over the precise orientation of judicial narratives, this book seeks to develop a deeper understanding of the emancipatory potential and limits of international criminal courts across different institutional settings.

This chapter introduces ‘pluralism’ as a framework for international criminal justice and provides an overview of the previous debates on (global) legal pluralism, fragmentation, and diversification of law as they have been framed in different legal disciplines. It then examines the interpretations of these concepts in those contexts and addresses the primary question of vocabulary choices. The pluralism language does not merely reflect a semantic change, but also comes with a paradigm shift. The chapter distinguishes between the dimensions of ‘pluralism’ in international criminal justice and identifies several underlying perspectives that may be valuable in explaining the nature and workings of the ICL project. Finally, it formulates the approach and research questions raised by the pluralism framework and provides an overview of the subsequent chapters.

This chapter compares international criminal tribunals and courts with the so-called mixed or internationalized tribunals and courts, and examines the reasons underlying the establishment of these particular mixed or internationalized courts. It also considers the main practical and legal problems that these courts are facing, focusing on the experiences of Kosovo, East Timor, Cambodia, and Sierra Leone, along with areas where new internationalized courts could or might be established in the near future. A general outlook for international criminal justice is also presented. The chapter argues that there is no single response to the multifarious aspects of international criminality, and that mixed or internationalized criminal courts and tribunals may prove to be one of the most effective societal and institutional devices currently available to international lawmakers.

This chapter focuses on the extent to which the contemporary project of international criminal justice cannot easily lay claim to what it imagines to be its past, because that past, despite superficial similarities, often exhibited fundamentally different concerns. It highlights three areas in which international criminal justice today is arguably dramatically different from how it was understood up to the 1990s. First, international criminal justice was for a long time much less obsessed with the criminalization of international law prohibitions specifically, and much more interested in the transnational dimensions of the criminal law. Second, it was much less committed to a strict model of individual accountability under international law and much more willing to see the state as the central pivot of international criminal responsibility. Third, it was intimately linked to peace projects whereas it has become intimately associated to the fight against atrocities and mass human rights violations.

New ways must be found to increase significantly the cohesion, efficiency, and transparency of the international criminal justice system without disrupting the decentralized structure of the international order in which it operates. Two avenues of action should be pursued. On the one hand, a large number of international criminal cases should be decentralized on the basis of precise rules of jurisdictional allocation, that is, brought before local, ad hoc internationalized or possibly regional courts that are located as close as possible to the populations concerned. On the other hand, a number of investigative and judicial activities of the International Criminal Court should be devolved, that is, conducted by the Court, not in The Hague, but in the countries concerned. These two processes of decentralization and devolution should be implemented in parallel according to well-defined criteria.

The chapter sets the International Criminal Tribunal for the former Yugoslavia (ICTY) legacies into a broader context of international criminal justice. It presents different approaches towards the many legacies of the ICTY. The chapter engages with the several phases that the Tribunal has passed, discussing their positive and negative points. It then examines the normative legacy of the ICTY, arguing that, although some gaps exist, the overall record of the ICTY is marked with several normative innovations. The chapter then visits the procedural legacy of the ICTY, in the sense of how the Tribunal made justice heard and seen. Lastly, the chapter discusses the institutional culture of the ICTY and its legacy to other international criminal tribunals. With this analysis, the chapter claims that the ICTY legacies are living beings, which will continue to be transformed throughout the history of international criminal justice.