The coming of age of international criminal justice
By Julia Geneuss and Florian Jessberger
Fifteen years ago, on 17 July 1998, the Rome Statute, the founding treaty of the International Criminal Court (ICC), was adopted, creating the first permanent international forum to try and punish perpetrators of mass atrocities. The anniversary of the adoption of the Rome Statute was chosen as World Day for International Justice — a ‘holiday’ to celebrate not only the ICC, but the whole emerging system of international criminal justice. This year the Rome Statute celebrates its fifteenth birthday, its Quinceañera. A good opportunity for a few thoughts on past, present and future of international criminal justice.
The emergence of an international system of criminal justice is indeed worth celebrating. It represents one of the few bright spots in the recent history of international law. In the last decade of the 20th century we experienced phenomenal progress in individual criminal accountability for genocide, crimes against humanity and war crimes, with, inter alia, the establishment of the ad hoc Tribunals for the former Yugoslavia and Rwanda, the proceedings for human rights violations, in particular torture, against Chilean General Augusto Pinochet in Spain and the United Kingdom, the establishment of the International Criminal Court, and the implementation of international core crimes into many national legal orders.
These days, however, international criminal justice is going through tough times. Fifteen years after the adoption of the Rome Statute and ten years after the idea of a permanent international criminal court switched from being a utopian dream to becoming reality it is difficult to deny that the ‘project’ of international criminal justice is increasingly coming under pressure. The euphoric mood that, only a few years ago, swept through the international and academic community as well as the general public has faded. Optimism has slowly turned into disillusionment. Arguably, the momentum for international criminal law has disappeared.
Several recent incidents, when considered together, support this hypothesis. At the international level, the performance of the ICC is met with growing disbelief. States parties have become more and more impatient with a Court that needed ten years to render its first judgment. Despite a growing number of investigations, prosecutions, trials and appeals they pushed for a zero-growth budget — in times of weak economy and financial crisis international criminal law does not seem to be too high on the states’ priority lists. Also, the ICC, first and foremost the Court’s Office of the Prosecutor, is heavily criticized for its allegedly selective prosecutorial strategy, its focus on Africa, culminating in severe tension between the Court and the African Union. Finally, these days it is more apparent than ever that ICC still is torn between universal aspiration and traditional sovereignty, between criminal law and international law, between common law and civil law traditions, between human rights enforcement and careful observance of fair trial standards, and, last but by no means least, between law and politics. The International Criminal Tribunal for the Former Yugoslavia, on the other hand, has received a lot of criticism for its recent acquittals of high-ranking military generals. The decisions were cause for deep concerns — both outside and apparently also inside the Court, culminating in allegations that the decisions were based on purely political rather than legal reasons. As a consequence, many observers feel that the Tribunal is well on the way to lose the rather good reputation it gained during the last decade and discredits itself at the final stretch before it will be closed down for good.
International criminal law enforcement also faces a backlash at the national level: Belgium and Spain significantly cut back their laws on universal jurisdiction, thus no longer being able to prosecute international crimes that have no direct connection to their territory or citizens. Judge Baltasar Garzón, the judge who initiated the proceedings against Pinochet in the mid-1990ies and one of the most visible protagonists of a forceful system of international criminal justice, has been swept out of the way. In several countries, such as Germany, the laws on international crimes which were ambitiously implemented during the heyday of international criminal justice have hardly been applied. And finally, in a closely related matter, the US Supreme Court recently sent a powerful message against civil universal jurisdiction with its unanimous decision in Kiobel, the majority of judges arguing for a ‘presumption against extraterritoriality’ in human rights litigation under the Alien Tort Statute.
These are just but a few fervently discussed “setbacks” for international criminal justice. These events and their possible impact on the overall fate of the international criminal justice project are important to analyze. Is this the not so happy end of the success story of international criminal justice? Or is international criminal justice simply being brought down-to-earth requiring an adjustment of our excessive expectations? In a symposium “Down the Drain or Down to Earth: International Criminal Justice under Pressure” we edited for the recent issue of the Journal of International Criminal Justice a number of eminent scholars present their views on these questions and put things into perspective.
Reading through the thought-provoking essays a number of common findings can be observed. First of all, most authors emphasize the relativity of success and failure: The assessment of the overall development of the international criminal justice project depends on the proper context and temporal baseline one chooses for comparison. If compared with the situation ten years ago, it must be acknowledged that international criminal law today is in a state of decline. Twenty years ago, however, today’s existing architecture of international justice seemed to be not more than a utopian dream of a few scholars.
Second, while most authors agree that the ICC’s performance is rather unsatisfactory, they simultaneously highlight the regained importance of national jurisdictions within the global system of international criminal justice. With international criminal law infiltrating the legal systems of many states, the principle of complementarity, which stipulates the only subsidiary competence of the ICC vis-à-vis national jurisdictions, comes to be seen as one of the most important features of the ICC Statute. This way, the prosecution of international crimes finds its way back to where it arguably belongs: before national courts of the affected states.
Ultimately, despite all well-justified criticism of particular events, the authors seem to concur that recent developments generally indicate normalization rather than structural decline. We tend to agree with this analysis. The establishment of a system of international criminal justice has been an ambitious, revolutionary project. As in any revolution, hopes have been high, probably too high. Maybe we are all just coming to terms with the simple truth that international criminal justice in action is not an ideal in itself. Rather, it is complicated, costly, and exhausting — both in a literal and a figurative sense. Time has come for more modest, more realistic expectations.
Dr. Julia Geneuss LL.M. (NYU) is Senior Research Fellow and Lecturer at the University of Hamburg. She is a member of the Editorial Committee of the Journal of International Criminal Justice. Prof. Dr. Florian Jessberger is Professor of domestic and international criminal law and procedure at the University of Hamburg. He is member of the Board of Editors of the Journal of International Criminal Justice.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. The recent issue of focuses on the many difficulties facing international criminal justice today, and David Luban’s and Bill Schabas’ papers are freely available for a limited time.
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Image credit: International Criminal Court (ICC) in The Hague, Holland. © thehague via iStockphoto.