Critiques of International Criminal Law Revisited in the Light of the Rome Statute
What More Can We Do?
As 2021 marked the 75th anniversary of the first international criminal trial in Nuremberg, this post will reflect on the current state of international criminal law (ICL). The conventional wisdom in this respect seems to be that ICL is a virtuous project in principle, but that its institutions – particularly the International Criminal Court (ICC) – are in bitter need of reform. The present essay will question this widespread position. Focusing on the critiques that have historically been mounted against international criminal prosecutions, it will be argued that the setup of the ICC has done its best to address these historical pathologies. To the degree that these problems still persist today, they seem to inhere in the concept of ICL and cannot be remedied through further reform at the ICC.
Positivism, Reconciliation and Retributive Justice
A first line of criticism that has accompanied ICL through the different stages of its development is the positivist accusation that has repeatedly violated the principle of legality. By punishing acts which, at the time of their commission, had not been criminalised, ICL has been criticised as ex post facto law. Such was the key reservation voiced by the US delegation to the post-WWI Commission on Responsibilities, as well as a central theme in Justice Pal’s dissent at the Tokyo War Crimes trial. This is perhaps the critique that is most directly addressed in the Rome Statute, as Article 22 lays down the basic principle of nullum crimen sine lege. Beyond this explicit guarantee, compliance with the principle of legality is further safeguarded by the extensive definitions of the core crimes provided in Articles 6-8bis and 70.
A second perennial objection to ICL is that its retributive legalism may prove counterproductive to a country’s transitional justice efforts. Post-Apartheid South Africa and Spain’s gradual democratisation after the Franco regime are commonly cited as examples in which a focus on reconciliation rather than on criminal trials proved effective. Here too, it is submitted that the Rome Statute provides for mechanisms to accommodate this concern. As such, where there are overriding political considerations that make criminal proceeding seem inopportune in a given case, the Security Council has the option of halting the ensuing investigations or prosecutions (Article 16). Similarly, and more explicitly, Articles 53(1)(c) and (2)(c) provide that the Prosecutor may refrain from opening investigations on the basis that they would not “serve the interests of justice”.
Complementarity and Collective Responsibility, Then and Now
A third potentially problematic theme that is implicit in the development of ICL is the dialectic between local and international prosecutions. Sceptics have contended that the international legal system does not provide suitable conditions for delivering criminal justice and that this should instead be the task of national courts. Indeed, whether criminal justice is best administered through national or international proceedings seems to have been an unresolved issue throughout the history of ICL: While the international trials of German officials contemplated in the Treaty of Versailles never became a reality, such proceedings were later conducted at the national level in the form of the Leipzig War Crimes Trials. After World War II, the trials before the International Military Tribunal at Nuremberg were later succeeded by national proceedings at US military courts in Allied-occupied Germany as well as at Israeli (Eichmann) and French (Barbie) courts. And in the case of criminal prosecutions following the Rwandan genocide of 1994, the national Gacaca court system operated in parallel with the International Criminal Tribunal for Rwanda created by the Security Council (cf. Article 8 of the ICTR Statute).
Again, the setup of the ICC aims to embody a compromise between proceedings at the national and the international level. Through the principle of complementarity as enshrined in Articles 1 and 17 of the Rome Statute, national criminal justice proceedings are in principle prioritised over ICC action; The Hague only steps in where national systems are unwilling or unable to engage in genuine prosecutions (see e.g. Prosecutor v. Katanga). This can be interpreted as an acknowledgement that international trials have their flaws, but that they should nonetheless play a role where the natural alternative – criminal proceedings at the national level – is unavailable.
Fourthly, a tension between collective and individual responsibility has been another companion of international criminal justice. As a problematisation of ICL, this may take varying forms. One of them is the critique that the individualisation of blame implicit in criminal proceedings is particularly inadequate in ICL. Phenomena such as war or genocide, so the reasoning goes, are the result of complex chains of events and cannot be made sense of in terms of the individual responsibility of one or few main perpetrators (on war, see the Report of the Commission on Responsibilities at p. 118f.). Another manifestation of the collective-individual ambiguity is ICL’s relationship with the more traditional notion of state responsibility. At Versailles, both approaches were discernible, as the scheme for prosecuting the Kaiser accompanied the broader plans for sanctioning the German state as such for the initiation of World War I. Relatedly, in 1945, while individual criminal responsibility for acts of aggression was established at the International Military Tribunal (IMT), the interstate prohibition on the use of force was laid down in Article 2(4) of the UN Charter. And more recently, while governed by Saddam Hussein, the Iraqi state was the target of extensive UN sanctions (SC Resolutions 661 and 687); on the other hand, after the fall of Saddam’s regime, the Iraqi Special Tribunal prosecuted individuals within the former ruling party on charges of genocide, crimes against humanity and war crimes.
Once again, it is submitted that the ICC Statute takes account of these issues. While the ICC is in principle only concerned with individual criminal responsibility (Article 25), collective notions can still play a role in establishing this responsibility. This becomes apparent, first, in the Rome Statute’s conception of crimes against humanity: According to Article 7(1), a crime against humanity is definitionally required to occur as part of a “widespread or systematic attack”. Moreover, Article 28 codifies the concept of commander responsibility, which can also be seen as an acknowledgement that the responsibility for core crimes cannot be too narrowly placed with the perpetrators but that the persons surrounding them may equally need to be held accountable (see Prosecutor v. Bemba). Finally, Article 8bis makes the existence of a crime of aggression contingent on a manifest violation of the UN Charter prohibition on the use of force between states. This is to be viewed as an attempt to harmonise ICL and the interstate ius ad bellum regime and to thus bring together the notions of individual (i.e. criminal) and collective (i.e. state) responsibility.
Victor’s Justice and the Africa Question
A final reservation about international criminal justice can be subsumed under the idea of selectivity. Historically, this mostly came in the form of accusations of victor’s justice. For instance, the tribunals at Nuremberg and Tokyo were concerned only with crimes committed by the Axis. Perhaps even more tellingly, when the French State tried Klaus Barbie on charges of crimes against humanity, these were defined as acts carried out in the name of a “policy of ideological hegemony” – suggesting that France wanted to prosecute only its former World War II enemies and deliberately excluded its own actions from the scope of this crime. Modern criticisms which see the ICC’s prosecutorial focus on Africa as evidence of a racial bias within ICL can be considered the contemporary version of this selectivity reproach.
Nevertheless, unlike prior international criminal tribunals – including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – the ICC’s jurisdiction is not confined to specific states. Subject to the Article 13 “trigger mechanisms” by which the Court can gain jurisdiction over a case, its competence is defined materially through the four core crimes (genocide, crimes against humanity, war crimes and aggression) enumerated in Article 5. Put differently, individuals from all states – including those that were themselves instrumental in the establishment of the ICC – may in principle be prosecuted by the ICC if they commit a core crime and their state has ratified the Rome Statute. Once more, it seems that historical concerns are responded to by the structure of modern ICL, in this instance through the adoption of a formally neutral catalogue of criminal offences. Beyond this, it is not obvious what could be changed about the ICC’s institutional architecture so as to make ICL more bias-free. Of course, inequities like the disproportionate targeting of African individuals persist. On the other hand, and as has been frequently noted, the majority of these ICC investigations are based on self-referrals by the relevant African states. In this sense, such imbalances may partially be an expression of the fact that the ICC operates in a world of pre-existing inequities between states, rather than a symptom of systemic selectivity within modern ICL itself.
Conclusion: The Tougher Question to Ask
The previous points about selectivity reflect this essay’s overall conclusion. The author has tried to show how various ambiguities and problems were indeed characteristic of international criminal justice at different stages of its genesis, but also how these issues were picked up and addressed in the Rome Statute. Naturally, none of this is to suggest that ICL today works flawlessly. The point here is a more nuanced but simultaneously more radical one: Perhaps the ICC is as good as international criminal justice can get. Modern ICL may well have stripped itself of its pathological tendencies to the greatest degree possible, such that it is unclear what further reforms could be adopted today to remedy its historical defects. Faced with the contemporary critiques of ICL, the question we may need to answer is therefore not what reforms to adopt. Much more fundamentally, we may instead need to decide whether, if further structural improvement of ICL is impossible, the system is worth preserving as it is or whether the project has become irredeemable.