International Criminal Justice

by

Kenneth A. Rodman

• LAST REVIEWED: 27 October 2016
• LAST MODIFIED: 27 October 2016
• DOI: 10.1093/obo/9780199756223-0196

Introduction

International criminal justice is a field of international law that calls for the prosecution of the planners and organizers of the gravest war crimes and human rights abuses. It is part of a growing body of international law that seeks to place the individual at its center—both as perpetrator, to be held accountable, and as victim, with a right to redress. In so doing, it challenges the more sovereignty-centered international law established at the birth of the modern state system in 17th-century Europe, in which only states have rights and responsibilities and national leaders are shielded from international accountability through the principle of noninterference, which exempts a state’s treatment of its own citizens from international law, and by conferring personal immunity to heads of state and diplomats and functional immunity to public officials. The first major challenges to that system were the International Military Tribunals at Nuremberg and Tokyo after the Second World War, both of which focused on individual rather than state responsibility for violations of international law, and did so regardless of traditional immunities associated with official position. They also established a new crime in international law—crimes against humanity—which pierced the principle of noninterference by holding individuals accountable for egregious acts of persecution and murder within their own territory, even if those acts are consistent with domestic law. While the Cold War impeded progress in international criminal justice, its end witnessed four developments that built on the promise of Nuremberg. First, the UN Security Council authorized two ad hoc tribunals to prosecute international crimes committed during the civil wars in the former Yugoslavia and the Rwandan genocide. Second, the UN negotiated the creation of hybrid courts with mixed panels of national and international judges, initially in Sierra Leone, Cambodia, and East Timor. Third, several states, primarily in Europe, enacted universal jurisdiction laws empowering magistrates to investigate and prosecute international crimes even if there was no connection to that country’s nationals or territory. Finally, the world’s first permanent International Criminal Court became operational as of 1 July 2002, roughly four years after the negotiation of its founding Rome Statute. As international criminal justice has become a more prominent feature of international law and of policy debates surrounding responses to political violence, it has also become the subject of multidisciplinary scholarship involving political and other social sciences, law, and ethics. To its strongest proponents in the academic and activist communities, this development represents a growing acceptance of a universal duty to prosecute certain core international crimes, the long-term consequence of which will be to end the culture of impunity in which state and rebel leaders believe they will never be held accountable for using whatever means they deem necessary, no matter how atrocious, to achieve their objectives. To its critics, this view overstates the power of legal norms to transform politics and understates the tradeoffs between international prosecution and other interests and values, such as promoting national security or mediating peace agreements.

International Legal Sources

While much of the legal scholarship on international criminal justice is designed for practitioners (e.g., prosecutors, defense attorneys, judges, legal advisors to foreign ministries), a basic knowledge of three bodies of international law is essential for political and other social scientists doing interdisciplinary work in the field. First, international criminal law assigns individual criminal accountability to violations of international law. Cassese 2008 and Ratner, et al. 2009 are comprehensive overviews of the jurisprudence of the field, while Cassese 2009 is an encyclopedic reference that includes analysis and commentary as well as summaries of key cases and concepts. A more concise overview accessible to nonlawyers is Slye and Van Schaack 2009. Second, the Laws of Armed Conflict, which are composed of both Geneva Law—obligations toward protected persons, such civilians or soldiers who have been captured or wounded—and Hague Law—which regulates the means and methods of warfare—establish the legal basis for war crimes prosecutions. Kalshoven and Zegveld 2011 provide a comprehensive exposition of the major treaties and their interpretation, while Best 1994 explains the historical evolution of the laws of war in theory and in practice. Gutman, et al. 2007 was part of the Crimes of War Project, designed to increase awareness of the Laws of Armed Conflict through books targeted at the general public. Third, International Human Rights Law guarantees citizens universally recognized rights vis-à-vis their sovereigns. Alston and Goodman 2012 is the most comprehensive text in the field, while Buergenthal, et al. 2009 is a concise introduction accessible to nonspecialists.

• Alston, Philip, and Ryan Goodman. International Human Rights. Oxford: Oxford University Press, 2012.

  A comprehensive text introducing students to international human rights law, focusing on its normative foundations, the codification of rights into treaties, and mechanisms for enforcement by the UN, regional organizations, states, nongovernmental organizations, and international criminal tribunals.

• Bantekas, Ilias. “International Criminal Law.” In Oxford Bibliographies in International Law. Edited by Anthony Carty. New York: Oxford University Press, 2012.

  A comprehensive annotated bibliography on international criminal law, focusing on its sources, jurisprudence, and history.

• Best, Geoffrey. War and Law since 1945. Oxford: Clarendon, 1994.

  A historian’s account of the evolution of the laws of war from their philosophical origins through their codification in the late 19th and early 20th centuries, the influence and limits of these restraints on practice during two world wars, and the impact of that experience on the reconstruction of international humanitarian law in the postwar period.

• Buergenthal, Thomas, Dinah Shelton, and David Stewart. International Human Rights in a Nutshell. 4th ed. St. Paul, MN: West Academic, 2009.

  A concise introduction to international human rights treaties and institutions.

• Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.

  A comprehensive and authoritative overview of international criminal law, covering its sources, the categories of conduct over which it can be applied, theories used to establish or exclude liability, its historical evolution, and the processes through which trials take place.

• Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009.

  A 1,200-page resource consisting of essays on key controversies in international criminal law, followed by two long encyclopedia-style appendices, the first on issues, institutions, and personalities, and the second providing brief summaries of key cases in international criminal law.

• Gutman, Roy, David Rieff, and Anthony Dworkin. Crimes of War: What the Public Should Know. Rev. and Updated ed. New York: Norton, 2007.

  An A-to-Z dictionary of key concepts in the laws of war with concrete illustrations, the purpose of which is to make international humanitarian law accessible to journalists and to the general public.

• Kalshoven, Fritz, and Liesbeth Zegveld. Constraints on the Waging of War: An Introduction to International Humanitarian Law. 4th ed. Cambridge, UK: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511995231

  A thorough and concise textbook introduction to the Laws of Armed Conflict, focusing on its sources, the 1949 Geneva Conventions, the 1977 Additional Protocols, and more recent treaties and doctrinal developments.

• Ratner, Steven R., Jason S. Abrams, and James L. Bischoff. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. 3d ed. New York: Oxford University Press, 2009.

  Analysis of legal precedents for prosecuting genocide, crimes against humanity, war crimes, and torture, and their application in national and international courts. The book concludes by applying these precedents to efforts to prosecute Khmer Rouge leaders for atrocities in Cambodia in the late 1970s.

• Slye, Ronald, and Beth Van Schaack. International Criminal Law: The Essentials. New York: Aspen, 2009.

  A concise overview of the history, practice, and key concepts of international criminal law, written in a way that would provide a useful introduction to nonspecialists.