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The International Criminal Law of the Future

Document Type

Book Section

Publication Date

2022

Publication Title

Is the International Legal Order Unravelling?

Abstract

International criminal law (“ICL”) is one of international law’s newer disciplines. It experienced three periods of intense growth during the past hundred years: during the interwar period of the twentieth century after the (failed) trial of the Kaiser; during and immediately following World War II as a result of the Nuremberg and Tokyo trials; and following the end of the Cold War with the establishment of ad hoc international criminal tribunals, the International Criminal Court and significant action at the national and international level addressing transnational crimes, including terrorism.

The ICL project is very much linked to a central theme of this volume: the evolution of a rules-based international order. Indeed, particularly as regards the “core crimes” of aggression, crimes against humanity, genocide, and war crimes, the decision to move from a purely political understanding of whether state actors ordering or committing such crimes were justified to a legal understanding of the same, has been, as I have written elsewhere, a journey from politics to law. Although the concept of a rule of law-based system is admittedly challenging to define, one might conveniently adopt the principles elaborated by the World Justice Project: accountability, just laws, open government, and accessible justice. In other words, like international criminal justice itself, a rules-based international order requires that governments, as well as private actors, be held responsible for their actions under the law, a fundamental shift from the days when the sovereign could do no wrong. That this attempted transformation of international criminal law developed during a mere 100 years is extraordinary, but cannot yet be taken for granted. This is particularly true as regards the law and mechanisms developed to address the core crimes, which were originally conceived as crimes committed by the state, to which there was therefore great resistance on sovereignty grounds, resistance that persists today.

As this Chapter highlights, ICL uses a “crime control” approach for transnational crimes, but a “justice” or due process approach—perhaps with elements of restorative justice as well—for core crimes. This results in a paradox: “Lesser” crimes such as terrorism are codified in treaties with robust interstate cooperation provisions, and even enforced by the UN Security Council or military action. Sanctions are harsh, “justice” is swift, and extrajudicial killing of suspected terrorists may be involved. State enforcement of drug crimes can involve cross-border kidnapping and harsh sentences and States may employ their domestic criminal jurisdiction exorbitantly in cases involving corruption or organized crime. On the other hand, the “most serious crimes of concern to the international community as a whole”—genocide, crimes against humanity, and war crimes—are codified in treaties with weak enforcement provisions. Core crimes are typically prosecuted in national and international jurisdictions, including the International Criminal Court, containing robust human rights protections for the accused, and are subject to significant jurisdictional, procedural, and enforcement constraints.

This Chapter traces the contours of ICL’s expansion over the past century; briefly surveys the relationship between that expansion, justice, and crime control; and concludes with some tentative thoughts about ICL’s likely future. The Chapter cannot possibly cover all of ICL: the field is too vast. Nor can it address related questions of transitional justice after mass atrocities, meaning modalities other than the criminal law that are used to restore peace to troubled communities. Its aim is therefore more modest: to survey the existing landscape, discern current trends, and draw tentative conclusions about likely future developments. The five broad trends evinced by this short study point in opposite directions. Some echo the concerns raised in this volume about increasing illiberalism in global affairs as States advance nationalist justifications for the commission of atrocities or other crimes, or punish non-state actors in increasingly harsh and extra-legal ways for the commission of transnational crimes. Others, however, support the continued evolution of the rules-based international legal order. Which trends will predominate in the long term is unclear, but the election of Joe Biden as the 46 the President of the United States, given his commitment to the rule of law and multilateralism, suggests that the short-term trajectory is probably positive.

Keywords

International Law, Human Rights, International Order, Future

Publication Citation

Is the International Legal Order Unraveling? (David L. Sloss, ed., 2022).

Comments

ISBN: 9780197652800

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