Introduction International Criminal Law
APRIL is the cruellest month, breeding
Lilacs out of the dead land, mixing Memory and
desire, stirring Dull roots with spring rain.
Winter kept us warm, covering 5
Earth in forgetful snow, feeding A little life with dried
tubers.
What are the roots that clutch, what branches grow
Out of this stony rubbish? Son of man, 20
You cannot say, or guess, for you know only
A heap of broken images, where the sun beats,
And the dead tree gives no shelter, the cricket no relief,
And the dry stone no sound of water. Only
There is shadow under this red rock, 25
(Come in under the shadow of this red rock),
And I will show you something different from either
Your shadow at morning striding behind you Or
your shadow at evening rising to meet you; I will
show you fear in a handful of dust.
T.S. Eliot (1888–1965). The Waste Land. 1922.
This work is a concerted attempt to achieve an informed interpolation between ethics,
politics and legal scholarship on international law, with reference to the specific category of
universal jurisdiction as it pertains to crimes against humanity. It posits that critical perspectives
from the Global South, combined with a transnational understanding of international law and a
committed inclusion of political judgment and collective responsibility for mass crimes, would
create a radically different framework for the debate on the normative underpinnings and procedural
qualities of universal jurisdiction in international criminal law.
In this vein, the dissertation in hand brings together three seemingly distinct areas of
scholarly endeavour: jurisprudential debates on international criminal law, international relations
and international law scholarship on state sovereignty, and applied political philosophy. It strives
to offer a compelling view of the future of international legal reasoning and legal theory concerning
the workings of accountability regimes in the Global South. It purports a critical analysis of the
prescriptive norms and institutions of modern international criminal law in the area of universal
jurisdiction, and argues with courage and caution that international law has the capacity to advance
values concerning the sanctity of human life, as long as it is not regarded as a closed and rigid
system leading to the perpetual victimization of states and societies in the Global South.
Numerous international lawyers approved of the 1999 bombing of Serbia by the members of the
North Atlantic Treaty Organization, despite the fact that some felt it was not compatible with a strict
reading of the UN Charter on matters of concern for state sovereignty. The argumentative
techniques through which international law scholars tried to abide by their moral intuitions despite
the obvious legal incoherence pertaining to the case of Yugoslav wars signifies a general turn to
ethics in legal theory, especially in the field of international criminal law. The shallow and often
hazardous moralization involved in justifying pro forma application of jurisdictional maxims such
as those present in crimes against humanity legislation constitutes a similar challenge. If we are to
avoid the danger of international criminal law becoming a behemoth of an oppressive instrument,
put to the service of the foreign policy choices of states and constituencies marked by power and
privilege, it must assume the prowess of deliberation and persuasion rather than relying entirely on
heavy-handed institutionalization and codification.
The question is, in the absence of widespread consent and with minimal threat of coercion, why
sovereign states are expected to obey international law. This dissertation approaches the subject
matter from a different angle: rather than why they should, I venture to ask why states choose to
embrace certain core principles of international criminal law. In the following pages, the question
of what compels domestic constituencies to owe allegiance to a higher set of rules, when each
country has its own law of the land, will be treated with care, given the damning history of
international law as seen from the Global South. The prevailing legal realist view holds that
countries act simply out of self-interest, and that if they consent to international law, they only
consent to norms and principles to regulate matters of common interest in which they are involved.
Here, the emphasis remains squarely on the state as the ultimate unit of international law. This
dissertation is written against such a presumption; it purports to understand international criminal
law as a transnational phenomenon shaped by multiple legal actors, the state being only one of
them. At the same time, international courts such as the International Criminal Court (ICC) should
not be made into a modern-day messiah of international criminal law. This debate is very difficult
to hold, more so even than questioning the sanctity of the state in international law, particularly in
an area such as crimes against humanity, given their heinous nature. In the following pages, these
two debates—namely, criticism of statecentric views of international law, and considerations of the
limits of universal jurisdiction in international criminal law—inform each other and are brought
together under the aegis of the concept of political judgment. Though rich in examples from the
field of international law and international institutions pertaining to adjudication of crimes against
humanity, the theoretical contribution of this work lies in the challenges it poses for received
wisdom on the foundations of international criminal law, and its critique of the practical ambitions
of the international legal system of accountability established since World War II.
In this vein, in the first half of the dissertation, the concept of state sovereignty and its derivatives
in international law are unpacked using the tools of comparative politics and international relations
scholarship, as well as pioneering work in the area of international law. The second half is allocated
to the debate on adjudication of crimes against humanity in the postICC era. The lens through which
this composite analysis is achieved is the jurisprudential basis of crimes against humanity
legislation in international law. Since 1945, the role played by political judgment in the deliverance
of justice in international criminal law has assumed unprecedented proportions, given the extreme
nature of the crimes listed under this body of laws. This dissertation, however, takes issue in this
regard with both of the existing models, namely, the dualist and monist renditions of international
law. Briefly, the dualist perspective claims international law to be alien to domestic law.2 It
characterizes international law as imposing and undemocratic, and thus only appropriations of it
through internal deliberation are deemed acceptable. This approach is typical of the dominant trends
in American and German jurisprudential thought, as well as some of the emergent critiques from
the Global South, particularly among the Muslim-majority countries and East Asia. The monist
perspective, on the other hand, is the darling of international law scholars with an institutionalist
bent, particularly regarding the issue of universal jurisdiction. Monism advocates 'universal
principles,’ applicable in all contexts due to their claimed normative superiority. In this regard, the
ICC’s embrace of crimes against humanity constitutes a prime candidate for critical analysis, as the
core crimes enlisted in the Court’s enabling statute are indeed a colossal affront to the whole of
humanity, and yet there are significant problems regarding the path followed by their adjudication.
According to the monist perspective, particularly in international criminal law, no caveats should
be accepted or even proposed, and the standards set by institutions such as the ICC are to be
accepted as non-negotiable in their nature. Exceptions are made only due to procedural delays, and
even then these are regarded a matter of providing sufficient evidence in due time, rather than
affecting the normative and legal validity of the legislation itself.
In this context, the present work poses the question of whether a third perspective is possible—not
as an in-between, but as one based on a more dynamic understanding of international criminal law.
The discussion presented in each of the six chapters indicates that, especially in the Global South,
if international criminal law’s adjudication mechanisms and procedural aspects are emphasized at
the expense of its core normative premises, the whole
2 See Harold Hongju Koh, "Trasnational Legal Process" (1996) 75 Neb. L. Rev. 181, and Abram Chayes & Antonia
Handler Chayes. The new sovereignty (Harvard University Press, 1998).
enterprise runs the risk of becoming suspect. Specifically, this work is constructed around two
methodological investigations. The first one attempts to unpack the normative framework within
which international law is commonly perceived. This effort guides the line of questioning framing
the first three chapters of the thesis. The presumed alignment of international and domestic law in
the area of universal jurisdiction constitutes the example on which such an inquiry is based. The
second methodological investigation is built upon the Arendtian notion of political judgment, as
opposed to the procedure-oriented understanding of international criminal law. Here, the aim is to
shed light on how different interpretations of core jurisprudence could be reconciled without
excessive dependency on an overarching institution such as the ICC. The case in point is again
crimes against humanity legislation and its multiple reiterations at the level of ad hoc, regional, and
hybrid courts. This latter methodological investigation is undertaken in the last three chapters of
the present work.
All of the chapters of this dissertation deal with concerns about the larger debate on international
law and problems of incongruity among the spheres of domestic and international law. This is done
with a desire to move forward, as the case at hand is that of egregious and unforgivable crimes
committed by states against their own people. To this end, the chapters on universal jurisdiction
and hybrid courts present findings from criminal law trials and case law in order to showcase the
interaction and fluidity connecting these two spheres of juridical action— the domestic and the
international. Vis-à-vis the domestic sphere, one is forced to acknowledge the importance of
national norms about the constitution of criminality, due to their socio-political effectiveness and
long-term legitimacy. Meanwhile, when the frame of analysis is shifted to international [criminal]
law, one has to deal with an uncomfortable reality that marks the field: it does not have a history of
egalitarian decision-making, equal participation, or transparent and regulated relations. Secondly,
there appears to be a problem concerning the unaddressed nature of the divide separating
international humanitarian and human rights law from other spheres of international law, in terms
of whether and when one can put a caveat on value pluralism. Thus far, the question of whether
jurisprudence pertaining to erga omnes crimes could be legitimately relativized—just as states
negotiate trade or labor laws, for instance—has largely been avoided due to the very nature of the
violence embodied by these acts. There are certain absolutes in these select areas, absolutes that
could go against demands emanating from local circumstances. On these issues, international
criminal law avoids the notion of political deliberation like the plague, for fear of allowing future
reversals or tempering with the unacceptability of crimes that fall under crimes against humanity
legislation. What we are faced with on the ground, however, reveals a rather different reality of the
adjudication of these egregious crimes.
At this point, Hannah Arendt’s work is introduced in earnest to the debate on international criminal
law. In Arendt’s analysis of crimes against humanity, the Aristotelian notion of politics as
engagement and the Kantian notion of reflectiveness in judgment are brought together to make
sense of how to put the unforgivable to trial. Though Arendt's work on political judgment was left
unfinished, as she was working on it at the time of her death, she left us enough to work with,
especially when read alongside the work of Karl Jaspers and others on the notion of collective
responsibility for societal and political crimes. Here, a distinction is made between the validity of
all possible moral persuasions—the old-fashioned legal pluralism argument—versus adherence to
an overall jurisprudential framework while remaining open to pluralistic participation and
interpretation of legislation at the domestic and regional levels. Specifically, this dissertation posits
that the Arendtian notion of political judgment allows for engagement, deliberation and
involvement, and thus offers us a democratic promise for the global application of international
criminal law. Its cutting-edge quality can be identified as that of politics of persuasion. Here,
judgment would not allow for absolutes. In cases such as crimes against humanity, however, one is
obliged to consider certain absolutes in order to establish criminality and thresholds of admissibility
for evidence. The only way to resolve this dilemma is to claim that taking an absolute stance against
such crimes is morally defendable. In other words, everyone would as a matter of the very basis of
their humanity potentially agree that certain acts constitute egregious crimes. This is perhaps similar
to the universal codification of murder—other than in proven instances of self-defense—as a crime
within the domestic sphere. However, another difficulty emerges here: how to separate the
jurisprudential approach that accepts differences in normative political judgments pertaining to the
adjudication of crimes against humanity from the aforementioned monist defense of universal
jurisdiction? This is the critical junction that the debate on universal jurisdiction has arrived at in
the post-ICC era. As argued in the following pages, formations such as hybrid courts in the Global
South attending cases of war crimes and crimes against humanity point to possible new directions
that could be taken.
The main practical concern fueling all of these inquiries is the following: one cannot force
jurisprudential maxims of international organizations such as the ICC upon societies that are
violating the basic principles framing crimes against humanity legislation unless there is a degree
of value convergence in place. The issue them becomes how to find a normative common ground
upon which domestic courts would willingly incorporate bodies of international law such as ICCled
legislation if and when the need arises, and also hand over criminals to venues like the ICC for trial
if they are unable to pursue the case, without such cooperation being seen as yet another hegemonic
intervention. Instead of appearing as a stable set of normative demands, international law is better
understood as an aspect of hegemony-building and maintenance, but which can also be used as a
technique of articulating political claims in terms of legal rights and duties against the powers that
be. Accordingly, the looming controversies in international law concerning the use of force, the law
of peace, human rights, trade and globalization in effect reflect strategies through which political
actors seek to make their preferences appear to be universal, or to confront the universality claims
of others. However, how much purposive ending of life through organized political violence, and
its justification by the very institutions responsible for protecting individuals and communities,
could be open to negotiation? Thus, the question remains: how can one proceed from the Arendtian
notion of the involved, negotiating, persuasive strategy/act of producing judgments to the
adjudication of justice in cases of crimes against humanity? Unless one is open to institutional and
dialogical interventions, building up normative commitments from the bottom up, how could
international criminal law provide a genuinely common language of jurisprudence for egregious
acts exemplified by crimes against humanity?
In a larger context, international law in general, and international criminal law in particular, is
facing new challenges in the post 9/11 era, though only some of these are related to the emergence
of the ‘new terrorism’ discourse in international politics. Reservations about the role and function
of international law in domestic affairs are on the rise. These range from marked skepticism about
the authority and utility of international law vis-à-vis local conditions, to caution about how
international law could be effected within the domestic sphere without undermining the foundations
of the legal systems at the local level. The European Union is a case in point, showing how even
the most elaborate regional efforts for juridical unification can backfire in unforeseen directions.
Across Europe, the debate about the relevance of international law is beginning to be conducted in
such pointed language that a constant underlining of the dangers and limits of constitutional
adjustments to ‘foreign law’ has become the tenor of domestic contestations. Law that falls beyond
the purview of domestic legislation is in effect characterized as fundamentally anti-democratic and
top-down. This point of view is no doubt paralleled by a highly negative perception of the
legitimacy of international law, as it is reduced to a mechanism that obligates states to justify their
local/national practices if they deviate from a supposedly universally coded but relatively alien set
of standards. National protectionism also propagates the already mentioned monism/dualism
dichotomy in law, portraying international law either as an external body of law capable of
penetrating the national legal order without democratic consent, or as a corpus of alien
jurisprudence that must be rigorously filtered through the prism of national constitutional law if it
is to accrue any benefit for local constituencies.
In the face of mounting challenges to international law’s legitimacy—at least in select areas
of jurisprudence such as crimes against humanity legislation—priority must be given not to
prescriptions for an institutionally-mandated procedural straightjacket, but rather to elucidating
minimal normative consensus and emphasizing political processes that hinge upon the persuasive
function of law and legal norms as political judgments. This alternative formulation could possibly
result in the refashioning of international criminal law, not as dictated by an overriding and
authoritative discourse, but as a normative enterprise and an evolving negotiation conditioned by
legitimate and locally endorsed judgments. In this new framework, international and constitutional
norms could be understood as contextually interrelated rather than as conflicting legal points of
reference or frames of jurisprudential meaning.
According to the traditional dualist perspective, the ultimate legitimate source of legal
norms is the democratic process itself. Accordingly, international norms—even those concerning
human rights—are domestically enforceable only to the extent that they are incorporated into
existing legal order through acts of statutory legislation. As such, the relationship between public
international law and domestic law is constructed as a tenuous interaction between two separate
realms. This point of view is deeply affected by concern that international norms can have an
immediate and/or unmediated effect on domestic legal structures and choices. When such
interventions are allowed to take place, the argument goes, they will lead to the emergence of an
unaccountable judiciary answering only to its own professional norms of conduct at the expense of
domestic legal and political prerogatives. Hence we witness the equation of international law with
the abdication and delegation of [national] sovereignty. Such an objection, often expressed in terms
of the cultural or institutional incompatibility of international jurisprudence with local settings,
assumes that norms of public international law potentially clash with local democratic
commitments. This is a particularly sore point, which clouds the horizons of international human
rights activism by challenging the local legitimacy of their demands and claims. Equally
worrisome, however, is questioning of the status of the moral principles and political reasoning
present in international criminal law. These bodies of law are perceived as falling outside the
bounded community of the nation-state and thus lacking a proper grounding. This deep-rooted
suspicion of international law is commonly justified by means of a contractarian view of democratic
legitimacy of law, vehemently defended both in the North and the Global South in the name of state
sovereignty. Accordingly, the domain of constitutional law takes on an intrinsic epistemological
priority over the purportedly uneven and unpredictable domain of international law. This position
is based on the assumption that there is a high level of social and political convergence in the
domestic sphere capable of providing a unique moral texture to domestic law.
Unfortunately, in contemporary international law discourse, this lack of ‘universal
justification’ is hardly ever taken seriously and thus is only dealt with summarily, as a legal detail
rather than a substantive issue. At this point, the following pages will argue, the plot thickens. It is
true that the origins of international law are not based on consensus. The whole enterprise owes its
existence to laws of war, treaty obligations, customary practices and unequal and yet binding
contracts, always protecting the sanctity of the Westphalian state system. However, the resultant
historical fragmentation of international law into parallel regimes such as trade, environment,
human rights, international criminal law, et cetera, signify international law’s failure to become a
panopticon-like structure. This fragmentation could indeed be regarded as a result of law’s intimate
relationship with power, politics, hegemony, discontent, indeterminacy and change. As such,
international law could be portrayed, in opposition to the presumed purism of the domestic legal
system that reflects a solid political contract among citizens, as a complex platform of conflicts,
negotiations, and legal regime-building strategies. These issues are discussed in detail in the chapter
on transnational law and fragmented regimes of accountability in international criminal law.
From international law's inception in the Grotian legal tradition onwards, international legal
discourse has been shaped by a constitutive tension between a view of law as having a contractual
genesis, and a view of law as reflecting conflictual moral claims dictated by the specific demands
of contending parties. This tension in turn feeds into two competing accounts not only of
legitimation but also adjudication. The former account, which relies upon private law metaphors
such as delegation and trusteeship, emphasizes the necessity of deference to the will of states as
representatives of political communities. Its alternative, on the other hand, prioritizes the emergence
of common normative principles in the conduct of legal reasoning and delivery of justice. The latter
account also proposes the possibility of a common global legal enterprise of adjudication based on
the juxtaposition of constitutional and international legal systems in select areas. In situations where
legal standards differ, and where an international body might interpret an act in a way that runs
counter to settled features of domestic constitutional law, international law is suggestive of
adjustments to be made to the domestic constitutional realm. Examples of this could yield both
positive and negative results for domestic constituencies, as is deliberated upon in critical debates
on public international law. Ultimately, however, this scenario substantiates the dualists’ ultimate
fear: the erasure of the domestic legal order and its adjudicative acquis. As the present work
suggests, international criminal law needs to rise to the challenge of surpassing these two opposing
accounts of adjudication and to come up with a judgment-oriented model for the realization of an
alignment between international and domestic legal spheres.
Needless to say, constitutions do more than merely provide legal guarantees for the
individual by protecting her freedoms against the interventions of public authority, i.e. the state, or
other individuals, communities and corporate bodies. Constitutions also indicate that the state has
a protective function regarding the rights spelled out by the constitution, including guaranteeing
equal access to their use. Meanwhile, the programmatic and open-ended content of fundamental
rights cannot be determined by or derived from the traditions of constitutional or administrative
law sui generis. Furthermore, excessive widening of the province of judicial action could lead to
courts outgrowing their role as catalysts of justice provision, and their becoming political actors
themselves at the expense of actual politics. Consequently, they could become drawn into the very
center of political conflicts and controversies. Tackling interpretive disagreements, in this context,
could no longer be considered simply a matter of debating the inner meanings of law itself. Once
constitutional adjudication is involved in the resolution of political-epistemic conflicts, the
integrative portal of constitutional law is faced with the impossible task of replacing political
dialogue. In legal theory, the dualist perspective rejects the validity of international law based on a
similar logic. The dualists insist that within a heterogeneous and morally divided society—whether
defined in domestic or international terms—law should mainly assume the function of establishing
a stable framework of rules of interaction, and nothing more. Law, then, is to reveal itself qua law.
Consequently, judicial discretion built into the process of adjudication is limited to clarifying the
antecedent meaning of law and monitoring compliance. This kind of unabashed extrapolation from
domestic constitutional law debates to the workings of international law is a commonly used
strategy. Though the argument merits attention, it hides the essentially hegemonic nature of legal
systems in the domestic realm, as well. This issue is particularly critical for developing a deeper
understanding of state criminality, both within the domestic sphere and from a transnational point
of view.
Another key dimension of this larger debate on law’s legitimacy pertains to voluntary
compliance with law. No doubt visible guarantees of institutional and third-party enforcement
cannot be identified as the only reasons for why such compliance occurs. In democratic
constitutional regimes, the absence of morally reprehensible means for ensuring compliance to law,
such as torture, rape or slavery, implies (at least in principle) that members of the constituent
political community are bound by a common ideal of justice, above and beyond particularistic
factors such as ethnic, religious, historical and cultural identities. Could there not be a similar,
underlying agreement concerning a common ideal of justice in international criminal law? As
already stated, the difficulty about international law is that a contractual ideal of justice cannot be
claimed as the origin of existing legal systems beyond the confines of the modern nationstate. In
this specific context, evolving standards of international law are regarded as subject to mechanisms
of structurally ‘incomplete’ approval processes exemplified by treaty and customary law. As such,
legal institutional practices such as the adjudication of crimes against humanity are considered
lacking in legitimacy. Their adoption requires a common agreement about their normative framing.
However, since they are triggered at the behest of aggrieved individuals and as ex post facto
developments in de-nationalized or hybrid settings, involved states tend to detest platforms of
adjudication such as those required by crimes against humanity legislation. Contrary to the
assertions of contractarian or dualist models of international law, rights and rulings that are defined
above and beyond the state are intrinsically political rather than procedural. If perceived as such,
international law neither seeks nor depends on full adoption of its codes by constitutional regimes,
otherwise known as the expectation of law’s working itself pure. The Hayekian values of certainty,
stability, and efficiency are no doubt as important for the workings of international law as they are
for domestic law; however, conflation of the boundaries of political communities such as those
purportedly represented by contemporary states with ethical prerogatives is a dangerous fiction for
all concerned. Such a conception of a institutionally closed, historically self-referential and
normatively sealed system of domestic law as a coherent and self-reliant legal edifice stands in
direct opposition to the production of legal norms concerning state criminality exemplified by
crimes against humanity legislation.
In conclusion, if international criminal law is re-introduced as an engaged practice of
aligned adjudication and, in tandem, as a persuasion-based strategy of new norm production rather
than the emphasis being placed on criminialization of select states, its potential for
recontextualizing international law and introducing a new dynamism to local understandings of
justice may readily unfold. International criminal law is normative by necessity, and it requires the
active usage of political judgment at a systemic level. Wishing otherwise only leads to disastrous
results, as seen in the widespread reactions to ICC indictments across the Global South. Normative
conduct with legal legitimacy cannot be limited to the domestic constitutional realm. The remaining
question is whether such a reflective and involved account of legal legitimacy presents us with the
required ability to rise above particular frames of meaning in such a way as to enable valid cross-
communal judgments concerning mass criminality. Here, justice as an ideal endorsed by
international criminal law would have to operate as a competing template that shows the limitations
of our own local intuitions. Would this perspective allow for certain acts to be ruled out universally,
such as those coded by crimes against humanity legislation? No matter how the ideal of justice is
perceived and ethically patterned—in the case of international criminal law, reference has to be
made to the Eurocentric historical background of the emergent legal regimes—singularly violent
moral commitments cannot be justified as the cornerstone of a normative structure within which
valid political judgments can be reached. In other words, legal actors who have committed crimes
against humanity cannot justify their actions based on the perceived needs of a given constitutional
order, whether European, post-colonial, or otherwise. Vis-à-vis crimes against humanity legislation,
the line of demarcation in terms of normative legitimacy cannot be addressed within the confines
of how political communities govern themselves. In this regard, this dissertation posits that
salvation for international criminal law in this particular area would come from a ‘thin’ rather than
a ‘thick’ universalism. Ultimately, a substantive theory of judgment is required to combat the
excesses of universalism, institutionalism, legal realism, legal positivism, contextualism and
relativism. Understanding the role of genuine politics in the formation of legal judgment is an
essential part of this endeavor. Indeed, it is this particular aspect of legal judgment that determines
the path of both its making and its application in divergent contexts. The world of international
criminal law outside the confines of the Hague calls for genuine exploration as a conceptual project
as well as a moral imperative.
I. METHODOLOGY
This dissertation uses applied legal theory and comparative international law as its two
prime methodological tools in the building and exposition of its main arguments and findings about
global applications of crimes against humanity legislation. Its chronological focus is the post-WWI
period of adjudication of international crimes, with a particular emphasis on post-2002
developments following the entering into force of the Rome Statute. The overall theoretical
framework guiding the present debate on universal jurisdiction and crimes against humanity is
indebted to the approach to international law developed and articulated by third generation of legal
pluralism and TWAIL [Third World Approaches to International Law] scholarship. The particular
debate on collective responsibility, on the other hand, uses concepts utilized in applied political
philosophy as they pertain to international criminal law. The examples referenced throughout the
text are drawn from international criminal law jurisprudence and case material related to state
criminality exhibited in both the global North and the Global South. However, the critical lens used
to analyze the overall developments in international criminal law and related accountability regimes
prioritizes the experiences of societies in the Global South.
International law’s discontents and excesses have always been exhibited at their starkest
along its peripheries, a realm that has otherwise come to be known as the Global South. The
relationship between the peripheries and the core of international law has been historically captured
by TWAIL scholarship. However, as TWAIL scholars readily attest, the Global South is not solely
defined by victimhood but by hegemonic and counter-hegemonic relations, shifting and changing
class alliances, and regional hubs of power and accumulation, rather than being the southern part
of a globe neatly divided into two. The complexity and multiple tensions within the Global South
are symptomatic of the general state of affairs in late capitalism. And yet, this is not simply a case
of the periphery mirroring what happens at the core. There are voices, forces and opportunities that
emanate from the Global South that take issue with, challenge and alter the very enterprise of
international law as it is shrouded on a pedestal at the core.
In response to the growth of international law’s involvements in the global management of
resources, movements of goods and people, and sustaining and embellishing accumulation regimes
across the Global South, there emerged a strong call against some of the key tenets of international
law since the 1990s. For instance, alter-globalization activists found their voice in alternative
governance models built upon North-South and red-green alliances, bringing together organized
labor, environmental groups, women's groups, and indigenous groups. Similarly, different genres
of protest movements began to propose alternative frames of reference both for seeking justice and
challenging traditional limits of adjudication in areas devastated by organized violence, both
political and economic. These distinct, albeit overlapping, responses to international law, coming
from legal scholars and in particular human rights lawyers linked with the Global South, as well as
activists and civil society groups, are indicative of a new conceptual model for how we work with,
translate, undo and redo international law.
A. TWAIL: Both Methodology and Theory
In this dissertation, I apply the rich and layered conceptual framework inherited from
TWAIL scholarship, combined with the activism and scholarship nexus in the Global South, to a
very specific area of international criminal law, that of universal jurisdiction as it pertains to crimes
against humanity. My point of departure is not the implications of the global application of crimes
against humanity legislation in international public law since the end of the Cold War. Rather, I
strive to elucidate the limitations of this particular legal construct’s applicability in a rigid and
ahistorical frame of reference dictated by centralized institutions such as international courts. As a
conceptual counterpoint to such an absolutist take, I argue that normative strategies centered on the
twin concepts of culpability/collective responsibility and human dignity could offer a conceptually
coherent and politically buoyant alternative. Furthermore, I argue that there is an urgent need for a
new frame of reference concerning erga omnes crimes and jus cogens norms in order for
international criminal law to speak to the realities of societies in the Global South. This cannot be
achieved through a simple reiteration of the conceptual precision of crimes against humanity
legislation, or the threat of universal jurisdiction pointing to trial at any court in any constituency
as seen fit. Indeed, there is an impasse concerning applications of international criminal law, but in
particular concerning crimes against humanity legislation in the Global South. In this regard,
critiquing state-centric notions of sovereign power or underlining the hegemonic role played by
international law in calcifying inherent power relations across the globe only provides the
beginnings of a critical conversation. In the following pages, I argue that we need to go much further
and dare to imagine a different path, leading to adjudication of crimes against humanity much closer
to where these crimes are committed. I also suggest that, on the normative plane, the dictum of
universal jurisdiction must be domesticated through acceptance of collective responsibility for mass
crimes and state criminality.
Critically navigating through the prevailing perspectives on international law, legal
pluralism, transitional justice, and legal ethics, this dissertation suggests that the current global
restructuring of legal regimes of accountability is reproducing subjectivities of marginalized,
dispossessed and deinstitutionalized groups in such a way that the terrain of political struggles are
reduced to symbolic trials and formulaic sentencing. Here I propose an alternative outlook, obliging
the spirit of facing our own demons in the Global South and asking substantive ethical questions
about culpability, legal accountability, and societal responsibility concerning egregious crimes that
states and societies commit against their own people.
A major consequence of the global restructuring of economies, societies and states in the
Global South has been the twin processes of further market integration and privatization of what
were once common or public goods, on the one hand, and unprecedented social exclusion,
precariousness, and dispossession on the other. These processes naturally resulted in further growth
of the marginalized, displaced and deinstitutionalized subaltern classes, who often became the
natural targets for mass political violence at times of societal crises linked with internal or regional
conflicts. Standard international law debates on post-conflict legal regimes and transitional justice
measures barely touch base with this reality of structural inequalities that preceded mass political
violence. In this spirit, this dissertation seeks to understand and transform the way in which legal
regimes of accountability affecting the Global South are studied in international criminal law. The
emphasis is on the larger historical context surrounding these legal regimes and the limitations
faced when law is used as the only or supreme tool for the identification and remedy of injustices.
Ultimately, I remain concerned with institutional formalization of ideals such as universal
jurisdiction for societal and political mass crimes in international criminal law. Similarly, the
emergence of set forms of punishment for crimes falling under the purview of crimes against
humanity legislation, as enshrined by the Rome Statute of the International Criminal Court (ICC),
deserves critical questioning. In this vein, this work strives to provide an account of interpretations
of crimes against humanity legislation against the terrain of self-realization, selforganization and
genuine political engagement with the past in the Global South. It is written against apocalyptic
and dystopian narratives detailing the usurping and hegemonic monstrosity of international law as
much as against the universalistic preaching of it. This constitutes a vital challenge to dominant
narratives of international criminal law both from within the status quo and, to a degree, from the
trenches of critical legal studies scholarship. There are inherent limits, as well, to the standard
readings of legal pluralism as the savior for all ills of international law.
Conceptually speaking, the Global South is one of the many “gray spaces” positioned
between the “whiteness” of legality/certainty, and the “blackness” of irregularity/destruction/death.
The vast expansion of such gray spaces in contemporary geographies of conflict reflects the
emergence of new types of power relations, which are facilitated and managed by regimes in the
Global South themselves. Traditional uses of international law have been a lynchpin of this order,
providing tools and methodologies to classify, contain and manage deeply unequal societies. As a
possible corrective horizon enabling analytical and normative interventions, I propose focusing on
the notion of societal/collective responsibility as a counter-weight to the oppressive dilemmas
marking the current discourse and practice of international law as it pertains to crimes against
humanity, the most universal of all crimes defined under its aegis.
Overall, in this work I propose two kinds of upheaval. First and foremost, I insist that the story
about post-Nuremberg embodiments of crimes against humanity should no longer be told as one
where the states and societies in the Global South are striving hard to establish or
operationalize accountability regimes, yet have only a few
“success stories.” Nor should the accent remain on the universalistic analysis of international
criminal law with its focus on the core legal institutions, since their authoritative take on crimes
against humanity has proven to be inadequate, inappropriate, or incomplete. My findings imply that
as a new generation of TWAIL scholars, we must identify the potential, and the limits, of an external
imposition of international criminal law without serious contextualization in both historical and
normative terms. Crimes against humanity legislation, and their domestication, are sorely needed
by the societies in the Global South—but not in the format in which they have been offered thus
far.
B. The Neverland of International Law, or, Searching for the Global South
How is the concept of the “Global South” to be understood in the context of international
(criminal) law? Though this is not the main focus of the present work, it is a very important part of
the metholodogical framework utilized throughout this work. This question is also central for
dealing with gross and egregious crimes committed in the Global South, ones that cannot currently
be addressed within the domestic legal setting in which the crimes were committed. Applications
of the existing dominant conceptual framework of international law to such cases only produce
more of the same: repeat scenarios of the universalization of international human rights and
humanitarian law, despite the opposing histories of these bodies of jurisprudence and their meaning
in the North and in the South. As a conceptual counterpoint to neutralized universalization, and as
an activist strategy towards rights protection and demands for accountability, the need for greater
conceptual precision in the analysis of international criminal law should be reiterated.
Chronologically speaking, the term “Global South” began to be used to overcome the hierarchical
or ideological implications of designations such as the Third World. It is also preferred if one refuses
to attach epistemological privileges to adjectives of “developing” or “developed” as both are
applied to the Global South. In the context of international law, the term owes its legitimacy mainly
to TWAIL scholarship. This poses the risk, then, of the Global South becoming a moniker for people
who engage in “alternative approaches” to international law. In other words, just as revolutions eat
their own children, the very coinage of the term Global South introduced the risk of marginalizing
the political and intellectual niche it demarcates. Still, it is not only TWAIL scholars who hold onto
it, and persistently so. Marxist and neo-Marxist critics of contemporary international legal regimes
have long pointed out that the grid of international law is determined by the distribution of political
and economic power, which in turn created the phenomenon of Global South in the first place.
Accordingly, contrary to what the term “international” implies, there is not and never was
substantive equality across the contemporary canvas of nation-states. Nor is there a reason to
believe that a global regime of universal justice could be built upon or sustained within the existing
system, due to the multiple layers of historical injustice that have gone perpetuated, unattended or
unresolved for centuries. The Global South thus emerges as a domain at least partially paralyzed
by the zealous plans for its recuperation and neocolonial re-incorporation via the laws, politics,
economies, and cultures of the North.
This kind of nihilism concerning the reach and potency of international law is not exhausted
by the debates on the North-South divide. The issue assumes even darker tones and more
complicated dimensions in terms of South-South relations. Since present work’s focus is on
problems and concerns addressed from within the states and societies in the Global South, this is
of utmost significance here. Unequal relations within the Global South are often left unattended,
only touched upon in terms of the common resistance to the hegemonic nature of North-South
relations. Despite this tendency, and if such ruminations on neo-imperialist/post-colonial law can
be set aside momentarily, another perspective on international law as it relates to the Global South
emerges. This new vista relates to the “internal potential” of adaptations of international law in the
Global South, without removing the necessary emphasis on power relations or historical
contingencies.
Across the Global South, depending on our choice of delimiting or defining criteria, there
exist patterns of injustice and abuse that do not only stem from the historic or current interventions
of the North. Equally important is the admission that there is indeed law in the Global South, rather
than its being a lawless place, or its legalities simply being a simulacrum of “Western Law.” The
key issue in this changed context is to decipher variant forms of legality above and beyond the
classic legal pluralism debate. Taking into consideration tensions endemic to fragmented and
overlapping legal regimes is a good starting point for the task at hand. Secondly, the Global South
encompasses a rich canopy of political entities including not just post-colonial nation-states, but
also autonomous regional governance structures, federal frameworks, overseeing public bodies
such as regional courts and regulatory institutions, civil society organizations, social and political
movements, and embedded transnational actors such as INGOs. In other words, it is not a mass of
ex-colonial semi-states without teeth to bite, or a sea of non-descript societies totally subservient
to the interests of the North. Societies in the Global South are not replicas of a post-colonial or post-
imperial master model. Rather, they harbour their own class structures, variant patterns and regimes
of capital accumulation and labor control, and different strategies of extraction and amassing of
wealth. They also exhibit a wide range of regional alliance-building trends and a canopy of
constitutional arrangements that regulate the relations between state and society. Consequently, it
is apt to suggest that the Global South possesses a multitude of “unique characteristics” as an object
of international law and administration, in particular international criminal law, rather than being a
derivative of legal realities emanating elsewhere, in the proverbial North.
Most of all, the Global South is understood as a politico-economic designation broadly
indicating the contours of the uneven development patterns of historical capitalism. The term term
contains all necessary references for histories of colonization, de-colonization, and postcoloniality,
as well as structurally conditioned material and political inequalities cozily coupled up with state-
induced injustices. However, these factors by themselves do not explain how international criminal
law works or how it could work. Uneven development does not suffice as a shortcut to societal
accountability and collective responsibility. With these convictions in mind, in the rest of this
chapter debates on universal jurisdiction in international criminal law are addressed, not from the
vantage point of a North imposing law and order onto the Global South, but from the angle of
mitigation and litigation in the context of emergent hybrid regimes of accountability within the
Global South itself. In particular, the possibility of a regime of “common but differentiated
responsibilities” regarding crimes against humanity committed by states against their own citizenry
will be brought into focus. The over-used dichotomies of North/South, developed/developing and
First World/Third World offer no new or substantive clues here. Urgent questions persist, but we
must look for answers elsewhere. For instance, how could we think through, rather than simply
think about, unequal distributions of material wealth and political power at a global scale, vis-à-vis
their effects on the Global South? How do we deal with societal crimes committed within the Global
South by regimes themselves? Could specific needs of criminal justice, as they pertain to universal
jurisdiction, be served within existing domestic legal frameworks, but via novel forms of
collaboration facilitated through hybrid mechanisms—through which the South can use
international criminal law or international human rights law jurisprudence for its own internal
purposes?
Ultimately, neither supporters of the universal jurisdiction paradigm, nor the group of
scholars whom we might call “international law universalists,” can be trusted with the task of
articulating an adequate notion of justice pertaining to most egregious crimes committed by states
against their own people. Both offer solutions that don’t fit, and insist on priorities and methods
that don’t deliver. Once all is said and done in some criminal court, the work of creating a more just
society has only begun. Furthermore, the biggest obstacle to developing a more nuanced and
grounded approach to mass crimes is already an erosion of the North/South divide. The greatest
impediment to reaching a substantive understanding of the legitimacy, efficacy, or even possibility
of international law in both the Global North and the Global South is the ascription of preconceived
consequences to democratic constitutionalism, which owes its crowned position to the persistence
of the statist paradigm in international law. Viewed in its lens, anything “international” looks
suspect due to its presumed lack of legitimacy. Accordingly, legal practices emerging under the UN
Charter, or courts such as the International Criminal Court (ICC), the European Court of Human
Rights (ECHR), or general customary international law, are declared to be troubled by unique
problems of coherence, efficacy and legitimacy, problems which national domestic law supposedly
does not suffer from. Statist constitutional thinking distorts the assessment of multifocal,
transnational, and in general pluralist legal practices. It exaggerates the value of domestic
constitutional practices, to the point of casting a thick cloud of suspicion over any form of legal
normativity beyond state-made law. Last but not the least, statism—particularly the kind that is
coupled with international law universalism—neglects the connection between domestic legitimacy
and efficacy and the wider regional or global contexts in which public law practices unfold. This is
yet another instance of misguided separation. National and transnational legal and political
practices are much more closely connected than conventional legal wisdom of either kind allows
us to acknowledge.
To summarize, the statist paradigm of democratic constitutionalism, along with its idealist
distortions leading to the presumption of absolute legitimacy of state law (and the faux realism of
rejecting all law beyond the state-made kind), constitute the framework within which international
law is most commonly imprisoned. The efficacy of domestic constitutionalism is so exaggerated
that, especially in the area of human rights law, it reaches dangerous proportions. The standard
reason given is a quotidian argument about the lack of domestic constitutional provisions for
international human rights law, with repeated references to the enactment of emergency measures
at times of breakdown of civil order and civil war. Meanwhile, law remains fragile and vulnerable
to social and political forces both inside and outside the domestic sphere. In addition, national
domestic law is often conditioned by and dependent upon the wider legal and political context in
which it takes shape. Legal scholars of the TWAIL persuasion know this all too well. Perhaps one
may go so far as to argue that the statist framing of international law, in the form of a renewed
devotion to democratic constitutionalism, is just another Westphalian fantasy par excellence, albeit
replaying itself some 400 years later and in a distinctly postcolonial context.
At this point, a cautionary note is necessary. The limited scope of universal jurisdiction for
select crimes such as crimes against humanity, and its careful application through institutions such
as hybrid courts, as discussed in the upcoming pages of this dissertation do not constitute proof
that international law is inherently legitimate. An ethically cloaked international legalism
suggesting that we all have an innate disposition to appreciate law in select areas of criminality and
violence, otherwise known as the common sense approach to law, is not a requirement for endorsing
hybrid courts, either. Nonetheless, it is apt to insist that the statist paradigm suggests falsely that
state-level law concerning restorative justice for political violence and mass crimes must or can be
framed solely at the domestic level. The presumption that there is a fundamental difference or an
unsurpassable separation between state law and law beyond the state, at least in the realm of public
law, is itself not only false but also anathema to the very history of human rights struggles. In this
vein, horizontal connections among burgeoning international, regional and hybrid adjudication
mechanisms, as well as vertical relations between international courts and domestic ones, are the
axes upon which universal jurisdiction in the Global South must be scrutinized.
Since the foundation of the ICC, there have been substantial changes in the ethos as well as
the methods underlying the operationalization of international criminal law in the Global South.
Whereas the norm that once informed international adjudication was the top-town imposition of
legal precepts, there is now a growing body of hybrid jurisprudence, as well as an emergent class
of national jurisprudence conversant in international criminal law. Indeed, a close look at the
contemporary international judicial landscape would quickly draw our attention to the role of
national courts in applying international law, despite the myriad jurisdictional and normative
conflicts and compliance problems pertaining to universal jurisdiction in select areas such as crimes
against humanity. This seems to be the way South for top-down approaches to international law, a
predicament that I intend to stand against throughout this work.
Chapter I. Beware the Gift of a White Elephant31: Topographies of Universal Jurisdiction in
International Law, Legal Pluralism and the Curious Case of the International Criminal Court
INTRODUCTION
Legal theory has long accentuated the institutional distinctiveness of law from other areas of
society, portraying law as discrete, internally coherent and thus self-referential and almost
autonomous.32 To distinguish law from other normative elements in society, one does not need to
31 The White Elephant refers to a valuable possession whose cost, and in particular the cost of its upkeep,
exceeds its supposed usefulness; it is regarded as a metaphor signifying an elegant liability. The term derives from
the sacred white elephants kept by traditional Southeast Asian monarchs in Burma, Thailand, Laos, and Cambodia.
To possess a white elephant was historically regarded as a sign that the monarch was ruling with justice and the
kingdom was blessed with peace and prosperity. However, since the animals were considered sacred and laws
protected them from labour, receiving the gift of a white elephant from a monarch was both a blessing and a curse: a
blessing because of the animal’s sacred nature, and a curse because the animal could not be put to practical use and
was very costly to look after and keep alive.
32 In his The Concept of Law ([1961] 1994), Herbert L. A. Hart provided a canonical analysis of the relation
between law, coercion, and morality, and addressed the question of whether and when law should be conceptualized
as a coercive order or as a moral command. In Hart’s view, there is no logically necessary connection between law
and coercion or between law and morality. He also takes a stance against imposing a misleading appearance of
uniformity on different kinds of laws and on different kinds of social functions that law may perform. Instead, he
posits the existence of variety in the content, mode of origin, and range of application of law. Accordingly, laws that
impose duties or obligations on individuals are described by Hart as “primary rules” of obligation. In order for a
system of primary rules to function effectively, he then argues that “secondary rules” will be necessary to provide an
authoritative statement of the primary rules. Secondary rules allow legislators to make changes in the primary rules if
the primary rules are found to be defective or inadequate. They also enable courts to resolve disputes over the
interpretation and application of the primary rules. The secondary rules of a legal system thus include rules of
recognition, rules of change, and rules of adjudication. Meanwhile, secondary rules themselves, i.e. the formal
qualities of law, do not guarantee delivery of justice in and of themselves. If the primary rules are not sufficiently
clear or intelligible, then there may be uncertainty about the obligations that have been imposed on individuals.
Neither are primary rules sufficient, in and of themselves, to establish a system of laws that can be formally
recognized, changed, or adjudicated. Primary rules must be combined with secondary rules in order to establish a
legal system. A second distinction Hart introduces is between “external” and “internal” points of view with respect to
how the rules of a legal system may be described or evaluated. The external point of view is that of an observer who
does not necessarily have to accept the rules of a given legal system. The internal point of view, on the other hand, is
that of individuals who are governed by the rules of a given legal system and who accept these rules as standards of
conduct. According to Hart, there are two minimum requirements that must be satisfied in order for a legal system to
exist: private citizens must obey the primary rules of obligation, and public officials must accept the secondary rules
of recognition, change, and adjudication as standards of official conduct. Finally, according to Hart, there is no
necessary logical connection between the content of law and morality, and the existence of legal rights and duties
may be devoid of any moral justification. For this debate, see HLA Hart, “Positivism and the Separation of Law and
Morals” (1958) 71 Harvard Law Review 593. Hart’s interpretation of the relation between law and morality
significantly differs from that of Ronald Dworkin, who in his Law’s Empire (1986) suggests that every legal action
has a moral dimension. Dworkin rejects the concept of law as acceptance of conventional patterns of recognition, and
describes law as an interpretive process combining jurisprudence and adjudication. In this general context,
international law is seen as problem-laden by Hart, since it may not possess all of the elements of a fully developed
negate the fact that law is indeed a broad phenomenon. One immediate way in which law’s
multidimensionality, complexity, and lack of unity can be identified is to look at law beyond state
boundaries. In this sense, looking at the contemporary legal landscape in the age of late capitalism
and globalization is both challenging and rewarding for the attempt to capture the complexities of
law. Meanwhile, the historical fact of the coexistence of multiple legal orders says nothing as to
their moral worthiness or capacity for justice. In this sense, recognition of the complexity and
plurality of contemporary legal regimes is only the starting point for present-day legal theory.
In this opening chapter, I will endeavour to answer the question of why we should care about
the contemporary multiplicity of legal regimes, otherwise known as transnational law, in the
specific context of accountability for state criminality. If state interests and domestic judiciary
interpretations of international law are by and large coincident with preferences of national political
leadership and local legislative concerns, what would be the point in reaching for a theory of
international law that is not fixated on the Westphalian order of things? How are we to appreciate
the consolidation of customary law and regulatory regimes that go above and beyond the direct
mandate of the executive powers of states and domestic justice systems? State-centric accounts of
international law no doubt entertain a rather rigid view of international law and of the actors who
occupy the contemporary legal universe. In contradistinction, alternative accounts discussed in this
chapter provide a depiction of international law as transnational law and, as a result, present us with
a different topographical view of accountability regimes. In this changed context, international-
cum-transnational law is seen as a complex deliberative process. Furthermore, international law is
seen as a battleground for multifarious interests and actors, only one of which is the state, each
trying to determine legal or semi-legal outcomes and judicial
legal system. International law may lack secondary rules of recognition, change, and adjudication. International
legislatures may not always have the power to enforce sanctions against nations who disobey international law.
Finally, international courts may not always have jurisdiction over legal disputes between nations. In
contradistinction, according to Dworkin legal theory does not merely identify the rules of a legal system, but also
interprets and evaluates them. A complete legal theory must consider not only the relation between law and coercion
(i.e. the force of law), but also the relation between law and rightfulness or justifiability (i.e. the grounds of law). On
this issue, also see Herbet L.A. Hart, "The New Challenge to Legal Positivism (1979)" (2016) 36 Oxford Journal of
Legal Studies 459 [the reprint of the original lecture delivered in 1979], and Andrzej Grabowski, “The Missing Link
in the Hart–Dworkin Debate” (2016) 36 Oxford Journal of Legal Studies 476.
processes to their benefit at a global level. 33 This alternate take on international law acknowledges
the inherently plural (though not necessarily pluralist) composition of law, and engages with the
multiple processes involved in the making and utilization of such law. This determination, in turn,
is crucial for fostering a systemic understanding of jurispathic and jurisgenerative dimensions of
international law, and could lead to a fruitful expansion of theories of jurisprudence concerning
state criminality beyond the domain of domestic legal regimes.
The question that guides this chapter’s discussion of the fragmented, plural and transnational nature
of contemporary international law is whether the nomos (normative universe) of Robert Cover’s
jurisprudential account of law, when applied to a global context, is substantively different from
what we are accustomed to dealing with in national, domestic contexts. This discussion also lends
itself to addressing the tension between ideas of monism and pluralism in legal scholarship. As I
already outlined in the opening of this work, legal monism signifies a pervasive positivist
understanding of law as a unified structure of valid rules and principles contained within a solid
institutional framework. Legal pluralism, on the other
33 For a promising and hopeful account of the making of international law in the era of transnational politics and global
economy, see Janet Koven Levit, "A bottom-up approach to international lawmaking: the tale of three trade finance
instruments" (2005) 30 Yale J. Int'l L. 125. Also see Ralf Michaels, "The re-state-ment of non-state law: the state,
choice of Law, and the challenge from global legal pluralism" (2005) 51 Wayne L. Rev. 1209; Balakrishnan Rajagopal,
"The role of law in counter-hegemonic globalization and global legal pluralism: lessons from the Narmada Valley
struggle in India" (2005) 18 Leiden Journal of International Law 345; Paul Schiff Berman, "Global legal pluralism"
(2006) 80 Cal. l. Rev. 1155; Ralf Michaels, "The true lex mercatoria: law beyond the state" (2007) 14 Indiana Journal
of Global Legal Studies 447; Peer Zumbansen, "The law of society: governance through contract" (2007) 14 Indiana
Journal of Global Legal Studies 191.
hand, emphasizes the multiplicity of legal practices and the hybridity of socio-political platforms
upon which legal edifices are built in the forms of institutions, rule-based structures, and regimes.
At least for the last two decades, legal pluralism has already become common currency in
contemporary debates on law and globalization, its main claim being that a form of global legal
pluralism represents both the most accurate description of law within globalization and the best
normative option. At the descriptive level, global legal pluralism is considered more reliable than
state-based accounts. At the normative level, global legal pluralism is understood as providing a
platform for opening up the legal realm to previously unheard voices.37
In the following pages, I argue that in the area of international law, the transnationalist view
allows current debates on legal pluralism to serve in the construction of a new understanding of law
in a global context, albeit with important limitations. The still operational conservative emphasis in
legal theory on the singularity, uniformity, harmonization, and totality of legal systems, depending
on the context within which law is discussed, could be relaxed both empirically and normatively
through the ethos of legal pluralism combined with a re-inscription of international law as
transnational law.38 In this case, the study of international law would no longer be circumscribed
by inquiries about how we maintain the integrity of law as a system. It would also not be limited
by the need to be socially responsive, adaptive, culturally inclusive and respectful of existing
normative systems.39 Instead, it would allow as much attention to injustice
regional law, and public international law. On the philosophical foundations of monism, see Luke MacInnis, "Two
Concepts of Monism: Axiomatic and Asymptotic" (2015) 77 The Review of Politics 603. For critiques of monism, see
Roderick Macdonald, "Metaphors of multiplicity: civil society, regimes and legal pluralism" (1998) 15 Ariz. J. Int'l &
Comp. L. 69; Mirjam Künkler and Yüksel Sezgin, "The unification of law and the postcolonial state: The limits of state
Monism in India and Indonesia" (2016) 60 American Behavioral Scientist 987; Violeta Moreno-Lax and Paul Gragl,
“Introduction: Beyond Monism, Dualism, PluralismThe Quest for a (Fully-Fledged) Theoretical Framework: Co-
Implication, Embeddedness, and Interdependency between Public International Law and EU Law" (2016) 35 Yearbook
of European Law 455.
37 See Peer Zumbansen, "Transnational legal pluralism" (2010) 1 Transnational Legal Theory 141; and Emmanuel
Melissaris, Ubiquitous law: legal theory and the space for legal pluralism (Routledge, 2016). No doubt, legal
positivism's failure to adequately capture the complexity of contemporary legal orders makes legal pluralism all the
more preferable as a descriptive theory of law. However, legal pluralism does not necessarily offer a normatively
desirable view of law, unless it is supplemented by a theory of critical legal justice. On the limits of legal pluralism,
see Sionaidh Douglas Scott, Law after modernity (Bloomsbury Publishing, 2013).
38See Margaret Davies, "The Ethos of Legal Pluralism" (2005) 27 Sydney Law Review 317. Also see Jonathan Crowe,
"The limits of legal pluralism" (2015) 24 Griffith Law Review 314; and Margaret Davies, Law Unlimited (Routledge,
2017). This debate continues amongst legal theory scholars and remains loyal to the format that was originally defined
by the Hart-Raz-Dworkin exchanges.
39 This said, scholars such as John Griffiths make the point of distinguishing between “weak” and “strong” pluralism.
Weak legal pluralism indicates that differences are recognized and managed by a dominant legal system. An example
for this in the area of international law would be the ironing out of inconsistencies between laws of the state and laws
and discontent as to harmonization and consent. Indeed, the presumed conflict and perpetual
conceptual tension between a depiction of a singular, all-controlling international law with
universal applicability and one of co-existing legal orders within a complex web of relations is an
outmoded view. Quasi-legal decision-making bodies (such as hybrid courts or regulatory bodies),
the internal governance systems of large organizations, alternative modes of dispute resolution and
arbitration, regulative systems with a global reach, and myriad other forms and settings that produce
legal or law-like effects clearly indicate the multiplicity of legal regimes at the transnational level,
encompassing the domestic, the international, and a third dimension that cannot be reduced to either
of the first two, the global.40 The critical issue is how to read this complexity within a historical
context that includes state-based domestic jurisprudence without prioritizing it at the expense of all
else.
The persistent focus on the singularity of legal discourse as an internally coherent system or on the
institutional qualities of legal regimes, including the more recent version focusing on novel forms
of constitutionalism, has become a source of frustration for a growing number of
dictated by international bodies and covenants, a practice commonly known as harmonization. This definition,
however, leaves out the importance of judiciary interpretation during and after the adaptation process. Perhaps better
examples would be arbitration tribunals and alternative dispute resolution mechanisms operating within the parameters
of existing national legal systems and in full regard of constitutional principles and premises. It should also be noted
that the recognition of such normative/substantive differences, to the extent that they are contained and sealed within
the realm of dominant law, does not constitute a threat to the doctrine of centralism. In contrast, “strong” legal pluralism
is defined as the irreducibility of differences of legal doctrines and/or applications and procedures under the rubric of
a singular institutional authority such as a state or an international court. Thus, in the context of strong legal pluralism,
two or more legal regimes co-exist in tandem and there is endemic tension between different legal orders, and a
dynamic and often conflictual relationship exists between the different bodies of law attending to same or similar
realms. It is also important to note that this is not simply a matter of jurisdictional reach. The aforementioned tensions
and conflicts may pertain to the substantive elements of the law, as well. In this latter context, the claims of singularity
and centrality are inherently unstable and self-contradictory. See John Griffiths, “What is Legal Pluralism?” 24 Journal
of Legal Pluralism and Unofficial Law 1 (1986). On varieties of legal pluralism without direct reference to international
law, see inter alia, MB Hooker, Legal pluralism: an introduction to colonial and neo-colonial laws (Clarendon Press,
1975); Sally Engle Merry, "Legal pluralism" (1988) 22 Law & Society Review 869; Paul Ricoeur, “The Plurality of
Sources of Law” (1994) 7 Ratio Juris 272; Martha-Marie Kleinhans and Roderick MacDonald, “What is a Critical
Legal Pluralism?” (1997) 12 Canadian Journal of Law and Society 25; Brian Tamanaha, “A Non-Essentialist Version
of Legal Pluralism” (2000) 27 Journal of Law & Society 296; and Christoph Eberhard, “Towards an Intercultural Legal
Theory” (2001) 10 Social & Legal Studies 171 (2001). Meanwhile, in the area of theories of jurisprudence, whether
Dworkin’s work delivers a legal pluralist ethos remains debatable, as he is often accused of reducing the pluralism of
the community that bestows a meaning onto law into a singular entity with a definable set of moral values and
normative choices. See Ronald Dworkin, Law's empire (Harvard University Press, 1986).
.
40 See Peer Zumbansen, “Transnational Law” in The Encyclopedia of Comparative Law (Edward Elgar 2006), 738754.
legal scholars and legal practitioners. State law by and large continues to be paraded as a superior
enterprise, characterized by its coherence and internal consistency, and by its autonomy from other,
non-state-related normative domains. In this context, the first question I will attempt to answer here
is whether legal pluralism, when applied to international law, could produce the desired change of
optics and allow for a focus on multiplicity, diversity, and conflict. The next question is to what
extent a legal pluralistic frame of reference would allow us to understand the inner dynamics of
fragmented and sometimes overlapping accountability regimes in international law, particularly in
relation to the phenomenon of state criminality. This latter inquiry will be undertaken through a
discussion of universal jurisdiction.
I. APPLICATIONS OF LEGAL PLURALISM IN INTERNATIONAL LAW : A TOPOGRAPHICAL
OUTLOOK
The tenuous relationship between international law and theories of jurisprudence, as briefly
touched on in the introduction to this chapter, has traditionally created a barrier to the establishment
of a framework within which international law could be understood from the point of view of legal
theory. To say the least, international law was posited as lacking the second order rules and
regulations defined by H.L.A. Hart and thus lacking in substantive tenets of a genuine legal system.
In the nexus of international law and international politics, on the other hand, the relationship
appears to be somewhat less troublesome. Often, international relations scholars would look for
three elements in order to determine the existence of a legal system: a legal concept, a structure or
framework capable of supporting its operationalization as law, and the political consensus to
recognize it as law. This mode of thinking promises to look beyond the debate over ‘legal norm
creation’ in international law, and to expand analysis of the relationship between theories of
jurisprudence and international law. Consequently, it dwells on international law’s effectiveness
and target constituencies. From this perspective, international law is not seen only as a coherent
collection of rules, prescriptions, and aspirations governing the conduct of states and other
international actors through legal processes and jurisdictional negotiations; it is described as a
complex structure composed of norms, actors, processes and institutions. Interventions by
international relations scholarship has also cut short the somewhat stale conversation on treaty
implementation and compliance. In its place, their work invites us to turn our attention to
institutional and system-wide normative characteristics of international law, as well as to the
authority and governance structures endemic to its operations.
In order to achieve such an insight from within legal scholarship, and not only with reference to
international relations theory pertaining to international law, a broader frame of analysis is needed
around the nature of law and its internal and external meanings, as the scale is enlarged to global
dimensions. In the following pages, I will provide a brief account of select debates in the history of
legal pluralism scholarship and their applications to international law. The sequence starts with a
broad overview of legal pluralism and the legacy of the New Haven School. It then proceeds with
a specific branch of international law scholarship, TWAIL (Third World Approaches to
International Law) and its effects on our thinking in terms of understanding international law. This
short overview concludes with contemporary interjections made by legal theorists who strive to
bridge the gap between jurisprudential scholarship and studies of international law from a radical,
reflexive or critical legal pluralism perspective, otherwise known as third-generation legal pluralist
scholarship. Although my very modest attempt at creating a topography of critical approaches to
international law could no doubt include the rich and layered debates exemplified by the work of
critical legal studies scholars, feminist legal theorists, critical race theorists, postcolonial debates
on justice, and other very important schools of thought, these are not explicitly included. This is
due to the limitations posed by my choice of focus, legal pluralism and what it can and cannot offer
for rethinking accountability regimes in international law.
Until recently, legal pluralist scholarship was divided into two main debates. ‘Classical’ legal
pluralism refers to anthropological and socio-historical analyses of legal systems of excolonial or
post-colonial societies, which had dual or multiple legal systems derived from indigenous pre-
colonial folk, communal, or customary law on the one hand and imperial law on the other. In
contrast, ‘second wave’ legal pluralism entertained the insight that all societies, formerly colonized
or not, are composed of multiple ‘semi-autonomous’ fields of normative control and legal discourse.
This latter position purported the co-existence of many forms of law, the majority of which are non-
territorial, non-state, local, or international, and horizontal rather than hierarchical. Both schools of
legal pluralism concentrate on legal plurality, and challenge the presumption that state law is
singular or indeed a superior source for legal meaning or conduct. However, they have paid scant
attention to the jurisprudential characteristics of the plurality of legal discourses, except in the
debate initiated by the work of Robert Cover and continued by Gunther Teubner and David Trubek.
I will call this the ‘third wave’ of legal pluralism, whereby legal scholarship developed a rich
analytical approach for the study of different modes of law and the struggle amongst them in terms
of co-existence within a dynamic normative landscape embodying imminent tensions. In this
context, the work of contemporary legal scholars such as Ruth Buchanan, Marti Koskenniemi,
Rajagopal Balakrishnan, and Issa Shivji, among others, attends to the conundrums of international
law. This latest debate does not assume that pluralism in law is merely exhibited in a multiplicity
of ‘semi-autonomous’ systems separated by territory, culture, or history. Rather, an attempt is made
to theorize law as a process in which legal actors, legal subjects and legal norms are interdependent
and effected by power and politics at large. The third wave took the legal pluralist premise that law
cannot be defined according to a fixed set of criteria one step further, and began to ask what ‘other’
criteria are to be used for the identification of different forms of law and legal regimes, distinct
from those espoused by canonized theories of jurisprudence. As legal pluralism began to be
reframed by critical international law scholarship from within the Global South, the establishment
of a theoretical nexus between a plural view of law and the various manifestations of socio-
economic and political power became manifest.
Theoretically speaking, understanding legal plurality is conditional upon the recognition of
irreducibly different accounts and experiences of law at a global scale. In this sense, there is a need
for the legal pluralism debate to move beyond empirical descriptions of different legal regimes as
straightforward socio-legal facts. Precisely in such a spirit, the third wave of legal pluralism attends
to the conceptual complexities inherent in the production and maintenance of legal regimes in a
world-historical context. This genre of thinking about law and legality is capable of attending to
the ways normative systems are construed as discursive practices rather than mere products of
institutions. In addition, the ideals of closure and order are coupled with an appetite for disorder,
chaos, change, and exceptionalities that prove the rules. In this sense, as Brian Tamanaha redefines
it, the central question of legal pluralism can no longer be the different forms that ‘law’ takes, but
what law is in its multifarious definitions Appreciation of incommensurably different
conceptualizations of law can lead to a reflective analysis of the historical specificity of mainstream
Western definitions of law, as seen in TWAIL scholarship. Furthermore, by moving beyond
descriptive recognition of the multitude of legal or law-like normative systems, a critically oriented
pluralism could point to the inherent diversity of legal regimes at a global scale—and so allow for
the discussion of plural sources, plural modes of reasoning, and complex and contradictory forms
of interaction between different legal regimes.
Finally, in terms of jurisprudential debates, law is incapable of grounding itself, and its
conceptual foundations rest on other elements that are traditionally regarded as outside law. These
elements also provide the contextual meaning of law in socio-political terms. Acceptance of the
necessary relationship between internal and external elements of law is a foundational premise of
legal pluralism. Indeed, critiques of the autonomy and separateness of law began with questioning
the internal coherence of law. In this sense, the third wave of legal pluralism is of direct use for the
study of international law in a global context, and more specifically for attending to what emerged
as transnational law in the age of late capitalism and neocolonialism.
A. The Legacy of the New Haven School
During the roughly four decades in which the concept legal pluralism has been used in legal
scholarship, it has become a subject of many a politically charged debate. Starting with Brian
Tamanaha’s article on the ‘folly of legal pluralism’ (1993), attention was drawn to the ‘legal
pluralist movement’ associated with the Commission on Folk Law and Legal Pluralism and the
Journal of Legal Pluralism. Tamahana argued that equalizing normative orders that are
fundamentally different from each other and calling them all ‘law’ was a questionable practice.
Still, reserving the concept of law for only state-made law leads to an essentialist and ahistorical
conception of law, and legal pluralism was guilty as charged for being the first one pointing to the
elephant in the room.
Indeed, legal pluralism is an essential component of thinking about law above and beyond the state,
both domestically and globally. In this section, I will discuss how, applied to the critical
understanding of law developed by legal pluralism, these two frames, local and global, inform each
other. The subject matter of this work is universal jurisdiction and accountability regimes pertaining
to state criminality. Therefore, my priority will be to understand the workings of law at the global
scale, although in the latter half I will also engage with the debate on legal judgment as it relates to
state criminality in situ. In this vein, transnational law provides a direct entry to the discussion of
the relationship between globalization, historical capitalism and law. The scope of analysis and
conceptual aspirations delivered by the term transnational law are markedly different from what
pertains to traditional depictions of international law. As marked by the canonized Yale lectures of
Philip Jessup, transnational law challenges the frame of thinking that long characterized
international law, and supplements it with a framework that allows grasping the plurality of
interactions among state and non-state actors as well as between states. Yet these observations are
far from having received general acceptance. Many still ask whether transnational law indeed
promises a different conceptual framework than the one habitually utilized by scholars and
practitioners of international law. A related question is whether transcendence of national frontiers
is the main criteria for deeming forms of law and practices of regulation ‘transnational’ and, if so,
whether this is enough to require a significant change of focus in legal scholarship. Does the
observable increase in the multitude of norm-producing institutions and actors constitute a good
enough reason for coming up with a different term for the legal universe that lies beyond the nation-
state while also encapsulating it? What is the main impetus behind the uprooting of ‘dearly-held
convictions of jurisdictional boundaries and competences’? Would it not be better to refer to the
phenomena under discussion as the ‘law of globalization’ rather than transnational law?
These questions have a relatively long history in the realm of legal scholarship and, what is more,
they are not unique to the area of international law. As the debates examined in this section will
reveal, the role of law within dispersed and fragmented spaces of norm production has been a
familiar topic since the early days of legal pluralism and critical legal studies. What is perhaps new
is the thorough consideration of the effects related to power and legitimacy of law at a global scale.56
Yet again, this shift in focus constitutes a significant challenge to the state-centered view of not
only international law, but also constitutional and regulatory law. Furthermore, the recognition of
private actors’ and organized interests’ growing relevance for law and legal regimes allows for a
much more nuanced and dynamic understanding of the relationship between state and non-state
actors, among states, and, between various legal actors and institutions in general. The growing
complexity of de-centered or multi-centric socio-legal and political discourses around transnational
activities requires an equally diverse and flexible frame of reference. The term ‘transnational,’
conjoined with pluralism, is supposed to be that very panacea.57 However, a change of terms alone
by no means produces all-encompassing solutions to theoretical or practical problems. Besides,
there is an ongoing debate within the field of transnational law over the characterization of this
field, i.e. whether it is fluid, semi-structured and cooperative, or a mirror image of power
inequalities, antagonistic relations, and anarchistic tendencies projected onto the area of law.58
Transnational law, deemed neither domestic nor international but both and more, is thus equally
important for constitutional and administrative law in a global context. For some, transnational law
is where real change will emerge, dethroning the monstrosity of global capitalism and neo-liberal
empires. For those who hold this viewpoint, transnational law, by way of providing a platform for
new forms of governance, is expected to overcome the alleged separation of domestic and
international realms and provide a global sense
Fragmentation of Global Law” (2004) Michigan Journal of International Law 999.
56 See Peer Zumbansen, "Defining the space of transnational law: legal theory, global governance, and legal
pluralism" (2012) 21 Transnat'l L. & Contemp. Probs. 305.
57 See Paul Schiff Berman, "From international law to law and globalization" (2004) 43 Colum. J. Transnat'l L.
485, and Paul Schiff Berman, "A pluralist approach to international law" (2007) 32 Yale J. Int'l L. 301.
58 The former debate is best represented by Anne-Marie Slaughter’s work. The latter viewpoint, on the other
hand, is vividly discussed by Mary Kaldor, Anthony Anghie, James Tully and Robert Wai. See Anne-Marie Slaughter,
“International Law in a World of Liberal States” (1995) 6 European Journal of International Law 1, and her “Judicial
Globalization” (2000) 40 Virginia Journal of International Law 1103; James Tully, Strange multiplicity:
Constitutionalism in an age of diversity (Cambridge University Press, 1995); Robert Wai, “In the Name of the
International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International
Law” (2001) 34 Canadian Yearbook of International Law 117; Mary Kaldor, "Civil society and accountability" (2003)
4 Journal of Human Development 5 and her Global civil society: An answer to war (John Wiley & Sons, 2013); Antony
Anghie et al, The Third World and International Order: Law, Politics, and Globalization (Martinus Nijhoff, 2003);
Antony Anghie, Imperialism, sovereignty and the making of international law (Cambridge University Press, 2007).
of transparency for legal conflicts and clashes of interest.
Against this introductory background on transnational law, and at the juncture of international law
and legal pluralism scholarship that led to the debate on transnationalism, the New Haven School
played a pivotal role. Its scholars, including Myers S. McDougal, Harold D. Lasswell and Michael
Reisman, were among the most influential groups of legal thinkers in the field of international law
since WWII. In their spirited response to Cold War realism, they put their faith in legal processes,
rules, and norms, at the expense of the might of naked power in world politics. Theirs was a choice
made in the name of recognizing the transformative normative power of what they saw as
international legal practices. Their departure both from legal positivism and political realism saved
them from the pitfalls of a doctrinal quest for ‘what law is’ in the international arena. Instead, they
turned their gaze to issues concerning how non-state law is created, how it operates, how it affects
domestic decisions, and how it influences the shaping of multiple forms of legal regimes. The
legacy of the New Haven School is perhaps best summarized in two basic questions: What is
international law made of, and, who makes it? Deriving from these two questions, other concerns
emerged, such as determining whether international law is primarily a system of edicts or rather a
complex process with indeterminate ends.
In their charting of the topography of international law, adherents of the New Haven School
fundamentally challenged the foundational assumptions about the nature of law and legal regimes
that had dominated legal scholarship until then. The School’s main impetus for engaging in this
kind of critique was their belief in the possibility of ‘bottom-up international law making’ with
respect to the codification of international rules and norms, as opposed to a top-down understanding
of formal legal systems obsessed with state sovereignty. They certainly did not regard the nation-
state as the primary lawmaker. They also refused to privilege treaty law as the preeminent form of
international law. They denied that international law was simply an eliteorchestrated process of
hegemonic power-building under the cloak of legality. Instead, they saw it as an uneven and yet
lively battlefield of variant stakeholders and interests. Consequently, it became possible to regard
international law as a legal universe made up of multiple and semioverlapping lawmaking
communities. As such, a new account of it could be given. Almost fifty years after the School’s
protests against nationalist and power-centred conceptions of international law, an influential group
of American law professors launched a new attack, but this time riding the tide of neo-conservatism
in United States. Jack Goldsmith and Eric Posner, in particular, emerged as two of the leading
spokespeople for the neo-conservative study of international law, though their followers come from
what may be called a ‘rainbow coalition’ of ideologies within a growing international audience. In
the ensuing debates critiquing the isolationist US stance against international law and the current
responses to neo-conservative, formalist, and doctrinal trends in legal scholarship, one could sense
a strong resemblance to the stance taken by the New Haven School back in 1970s. In this sense,
there emerged a tradition of critique adjusting to the demands of the changing times. Along that
trajectory, there are at least three other schools, namely TWAIL, Critical International Law and
Radical Pluralism debates, which take issue with international law as it has been traditionally
perceived and taught. However, they take the inequalities and historical injustices endemic to the
current state of world capitalism as their point of departure, rather than a mainly internal critique
of how international law works within the West. These latter bodies of scholarship therefore have
more kinship with the articulation of international law as globalization of law or transnational law,
and are prone to overlook the nation-state much more readily. Though the legacy of the New
Heaven School is indeed an important one, to globalize this kind of critique requires a vision that
looks above and beyond the way things appear from the Global North alone.
B. TWAIL Scholarship and the Radical Pluralism Debate
Third World Approaches to International Law (TWAIL) is a critical approach to international law
that has assumed a distinguished status in the overall questioning of the history and legacies of
international law, an endeavour that started with the first and second waves of legal pluralism
discussed above. However, TWAIL comes with a marked distinction. It is an approach to law that
is unified by a particular set of concerns endemic to the application and imposition of law in the
Global South. It draws its methodology primarily from the history of the encounter between
international law and colonized peoples and post-colonial societies. In this regard, TWAIL shares
a common heritage and an arsenal of analytical tools with post-colonial studies, feminist theory,
critical race theory, critical legal studies, and Marxism, as well as with legal pluralism. TWAIL
scholarship prioritizes in its study the power dynamic between the largely Developed Core and the
mostly Dependent Periphery in the world capitalist economy, following the terms used by world
systems analysis. Overall, it highlights the role of international law in legitimizing the subjugation
and oppression of societies in the Global South. Although TWAIL scholars strive to avoid
presenting the “Third World” as a unified, coherent place and instead put emphasis on the shared
experiences of underdevelopment, imposed dependency, and marginalization, they also try to
salvage at least some parts of the overall project of international law to aid struggles for justice in
the Global South. Contemporary TWAIL scholarship has it origins in works of jurists such as
Georges Abi-Saab, F. Garcia-Amador, R. P. Anand, Mohammed Bedhaoui and Taslim O. Elias.
These were later joined by Antony Anghie, Bhupinder Chimni, Karin Mickelson, Obiora Chinedu
Okafor, Wa Makau Mutua, Balkrishnan Rajagopal, and Issa Shivji, who are from postcolonial
societies themselves. In the remainder of this section, I will first discuss the TWAIL project and its
significance for the debate on transnational law. I will then concentrate particularly on
Koskenniemi’s work and one of his most vocal critics within the larger context of legal pluralism,
although he is not a TWAIL scholar himself.
As already stated, TWAIL is a legal theoretical discourse that offers an in-depth critique of the
current international law regime from a Global South perspective. The frame of thinking used by
scholars associated with TWAIL represents a distinct form of historical analysis concerning the
development of international law. TWAIL scholarship adheres to the description of international
law as a set of practices that lead to the continual subordination and marginalization of the
experiences of Third World societies, in particular legal activists and scholars. Makau Mutua
describes Bandung, Indonesia as the symbolic birthplace of the TWAIL discourse, although the
school is heavily indebted to the Non-Alignment Movement as well.68 Overall, TWAIL emerged as
a response to repressive and disciplinary strategies of decolonization in the Global South. It was
developed due to the urgent need for a historical approach to understand why liberation projects in
the post-colonial world could hardly ever were able to deliver what they promised. TWAIL
scholarship also attends to historical experiences in non-European and post-colonial societies that
have given rise to a unique form of political consciousness about the law.
As such, TWAIL scholarship is dedicated to unpacking the uses of international law as a medium
for the creation and perpetuation of racialized hierarchies, to historicizing the development and
evolution of international law as a repressive universalist discourse, and to critically assessing its
uses for the subordination of peoples and their realities across the Global South.69 TWAIL claims
to be counter-hegemonic, anti-hierarchal, and also coalition-prone. Keeping with the spirit of legal
pluralism though not necessarily identifying with it, TWAIL discourse thus assumes a moral
equivalence of cultures and peoples. It is in this light that it considers the current regime of
international law as illegitimate, since what exists today is seen as
Law Review 379; Ibironke Odumosu, "Challenges for the (Present/) Future of Third World Approaches to International
Law" (2008) 10 International Community Law Review 467; B. S. Chimni, "The world of TWAIL: Introduction to the
special issue" (2011); James Thuo Gathii, "TWAIL: a brief history of its origins, its decentralized network, and a
tentative bibliography" (2011) 3 Trade L. & Dev. 26; Luis Eslava and Sundhya Pahuja, "Between resistance and reform:
TWAIL and the universality of international law" (2011) 3Trade L. & Dev. 103.
68 Makau Mutua, "What is TWAIL?" (2000) and Makau Mutua, "Savages, victims, and saviors: the metaphor of human
rights" (2001).
69 Anthony Carty, Philosophy of International Law (Edinbrugh University Press, 2007).
being based almost entirely on the intellectual, historical, and cultural experiences of one particular
region of the world—that is, Europe. Finally, TWAIL is positioned as a reconstructive project that
aims at eradicating the conditions of underdevelopment in the Global South. Since international
law has been instrumental in regulating encounters between Europe and the rest of the world
through the rules of both sovereignty and self-determination, TWAIL scholars argue that
international law has been used for the forced assimilation of non-European peoples into a legal
regime that they had no voice within. In order to build strong alliances to counter the position that
post-colonial societies have been locked into, TWAIL scholarship has asserted itself through the
formation of transnational movements committed to de-centering the European-North American
domination of international law.
Despite this highly charged political stance, TWAIL scholars still express the need to be self-
critical, aware of the limitations of the school and the voices it may have yet excluded. The
emphasis of this discourse is on the international legal regime’s complicity in the maintenance of
colonial legacies during the post-colonial era. In this context, international law is depicted as neither
neutral nor impartial. Rather, it is marked by its indifference to human suffering and to its own
complicity with historical injustices. Mutua describes the relationship between the international
legal regime and its players through the metaphor of savages-victims-saviours. Accordingly, the
state is depicted as the operational instrument of savagery in international law. The victim, on the
other hand, is described as a human being whose dignity and worth have been violated by the
savage. The victim is perceived as powerless, and thus in need of external intervention. Of course,
the victim is non-white, highlighting the racial divide endemic particularly to human rights
discourse in international law. The saviour, then, refers to the Eurocentric nature of the dominant
international law paradigm, constructing Europe as normatively superior.
One of the most significant critiques of the international legal system offered by TWAIL
scholarship is related to the fact that the pioneering roles played by non-Western activists, judges,
legal scholars and human rights actors are not at all acknowledged in the universal human rights
discourse. In this vein, Issa Shivji argues that a re-conceptualized rights regime is needed to
challenge the hegemonic logic of international law by unpacking its imperialist and statist biases,
while at the same time providing space for registering Third World people’s abilities to resist
hegemony. Overall, TWAIL scholars take a decided stance against the promotion of a sense of
naturalness of international law, and treat it as a political project of homogenization in its current
form. They assert that the lack of attention to influences from the Global South within human rights
law leads to a significant erasure of the legitimacy of the discourse, since problems are to be solved
without reference to those involved and affected in the first place. The inconspicuous erasure of
race and racial hierarchies within the human rights discourse and the international legal system in
general is read as a pathology of self-redemption masking the international hierarchy of race and
colour re-entrenched in the global system of capitalist relations. In this light, TWAIL scholars push
for opening up the discourse of international law, and strive to create a balance between individual
and group rights, giving more substance to social and economic rights, relating rights to duties, and
addressing the relationship between the corpus of law and global economic systems.
Although state sovereignty and the right to self-determination offer some tools through which one
could assert the dignity that is so central to self-actualization, it is critical for the system to be
reformed not only from the point of view of human rights applications but, more generally, from
within the realm of international law. In this regard, TWAIL scholarship, although internally
fragmented, thus far has iterated a strong argument concerning the importance of an in-depth
understanding of the power dynamics and historical realities at play in international law. TWAIL
discourse attacks widely accepted norms of international law that both victimize and blame the
peoples of the Global South. As it invites more actors onto the stage, it detests normative hierarchies
in the construction of international law as a regime of hegemonic practices. For these reasons,
although not formally included in the registers of legal pluralism scholarship, I believe there is a
valid case to be made for TWAIL scholarship to be construed as part and parcel of what I call the
third wave of legal pluralism.
C. Radical Pluralism and Beyond
In the remainder of this discussion of legal pluralism, I will concentrate specifically on Marti
Koskenniemi and Ruth Buchanan’s work on international law and globalization. This choice is by
no means meant to suggest that the work of other legal scholars is not important in marking the
contours of radical pluralism. Peer Zumbansen and Gunther Teubner’s works, in particular, are far
too influential to omit from any such discussion. But for the purposes of this chapter, I choose this
duo of legal scholars, as the second of them engages in a debate with the first from within legal
pluralist discourse itself, while also utilizing many of the conceptual reference points of the latest
phase of legal pluralism, including Teubner’s work.
From the late 1980s onwards, Koskenniemi engaged in an embedded discussion on international
law, the tenor of which was spelled out in his From Apology to Utopia: The Structure of
International Legal Argument (first published in 1989). In this early work, Koskenniemi presented
a critical view of international law as a discursive practice that attempts to remove the political
from law as well as from international relations. If allowed to function this way, international law
would be nothing more than either an irrelevant moralist utopia or an apology to global power
politics. In his later work, including The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870-1960 (2001), Koskenniemi diversified his agenda on the discussion of
international law. He first developed an intellectual history of international law, and then offered a
critique of that history. This led to a highly pessimistic account of the content and workings of
international law, wanting it to be more than what it now is. In this sense, Koskenniemi follows a
similar trope to what one finds in Michael Mandel’s, Tony Evans’ or Steve Ratner’s critiques of
different branches of international law. Overall, Koskenniemi seems to have finally given up on the
formal, classical legal ideal of international law in search of a normatively endowed, Kantian ideal.
This was perhaps to be expected, as he is an intellectual historian of the tradition of international
law rather than a jurist. In fact, his critique of international law eventually led him to study even
the methodology of the profession. This new turn in his work is most observable in the International
Law Commission (ILC) Report titled Fragmentation of International Law: Difficulties Arising from
the Diversification and Expansion of International Law (2007), finalized by Martti Koskenniemi
himself. The report organizes and synthesizes the various debates and discussions that relate to the
breaking up of international law into several distinct regimes. It also presents practical suggestions
for mitigating some of the problems often associated with increasing fragmentation.
At this point, I turn to Ruth Buchanan’s critique of Koskenniemi’s work and her reintroduction of
legal pluralism, not as historical critique or background for policy suggestions but as a legal
theoretical method of dealing with international law while critically addressing its contradictions.
In her work, Buchanan provides both a critique of and a possible alternative to Koskenniemi’s
internal remedies for the failings of international law. She argues that as long as globalization is
reframed as an external problem for legal theory, the solutions envisaged will be determined by the
limited parameters of already existing legal discourses. Global legal pluralism, on the other hand,
could invoke or illustrate the multiple, diverse, and contested sources of law on a transnational
plane and could allow us to think about law differently, rather than focusing on how to respond to
globalization within existing frameworks of legality. Buchanan, like TWAIL scholarship, is
squarely opposed to a positivist conception of law. She also refutes the reduction of legal plurality
to descriptive claims and instead subscribes to it as an ethos and a form of critical theory. Her
approach to legal pluralism takes as its starting point a critique of the tendency to think of law as a
privileged domain of aspiration, responsiveness and precision. She thus endorses an understanding
of legal forms and institutions as both contingent and revisable, to allow for opportunities for those
whose interests are inadequately addressed by current institutions and legal regimes.
Specifically, Buchanan’s critique of Koskenniemi is two-fold. She states that while law and politics
are interrelated, legal discourses cannot be equated with political outcomes. Moreover, she argues
that while a critical investigation of the politics of law can be quite helpful in revealing law’s
failures and exclusions, this kind of analysis does not shed light on the production of law, or on the
capacities of legal subjects to contest, change, or add legal meanings. Although she appreciates
Koskenniemi’s attempt to imagine law as inherently plural, her emphasis is more on the plurality
of law-creating subjects. In comparison to Koskenniemi’s worries about diplomats, jurists and
international lawyers, Buchanan would like to think of a much wider range of law-creating subjects.
She also refuses recourse to a unifying image of a constitutional moment, and instead chooses to
live with a “radically legal pluralist” topography of multiple and diverse subjects and regimes, and
a transnational legality without a centre or normative hierarchy. The implication of her reframing
of international law is that emergent transnational regulatory regimes need not be reduced to
relations of superior/inferior based on the degrees of their “legal” or “constitutional” nature.
Instead, echoing the work of Cover, Teubner, and Trubek among others, Buchanan presents
international law as an amalgamation of competing, interpenetrating, and mutually constitutive
regimes at a transnational scale. She hopes that by allowing such plurality to be perceived, public
discussion about the emergence and evolution of transnational legal norms might include a much
wider range of institutional and discursive mechanisms. In summary, in my view, Buchanan’s
unique contribution to the third wave of legal pluralism debate is her insistence that we give up our
obsession with legal forms and start dealing with matters of substance, content, and agency, and
frame these in terms of processes rather than formal rules. For her, the lens of legal pluralism leads
us to understand the construction and contestation of normative frameworks by legal subjects. This,
in turn, is what is called the reflexive approach to the relationship between law and politics in the
international realm, whereby competing normative claims are engaged, negotiated and
compromised in the name of law.
II. TRANSNATIONAL NATURE OF ACCOUNTABILITY REGIMES IN INTERNATIONAL LAW AND
MULTICENTRICITY OF LEGAL PRACTICES
In this section, I will narrow down the debate on the applicability of legal pluralism to international
law to the specific field of accountability regimes in international criminal law, the subject matter
of this dissertation. A well-functioning accountability regime in international law may well be the
ultimate dream of legal scholars and jurists. However, the crystallization of a unitary legal system
is an elusive goal, still yet, if ever, to be realized. Coherence and efficacy in the overall international
legal order, with its fragmented and diversified legal regimes, could not be achieved by any given
set of primary rules. The multitude of ‘secondary rules’ in international law—referring to Hart’s list
of recognition, change and adjudication—is a constant force to be reckoned with. Nor could we do
away with the proliferation of ‘third party forums’ or hybrid organs in international law, without
the attached cost of eradicating variant forms of dispute settlement or domestic politics integral to
both law-making and adjudication at the national or regional levels. If we follow the lead of
Jonathan Charney, who gave up on the dream of a unitary regime of international law as early as
1988, clearly pronouncing so during his Hague Lectures, cross-fertilization and variegation are to
be seen as improvements to the overall quality of international law, rather than a gradual undoing
that must be opposed at all cost. Observable changes in the global network of legal systems,
indicative of a decisive move from an exclusive focus on state parties further, undo the majestic
assumption of structural unity in international law. In this case, how could we pronounce an
international “accountability regime that is far-reaching, flexible, adaptable, and yet does not
amount to a cacophony of legal practices? Furthermore, is it desirable to have such a regime, and
one that is based on synchronizations and alliances in the face of histories of discontent and
injustice?
No doubt, this set of questions is of import not only for international criminal law, but have
implications for all areas of international public law. However, these concerns are particularly
troubling for international criminal law due to the heavy weight of jus cogens norms and ergo
omnes obligations that dictate a regime of universal jurisdiction in areas such as crimes against
humanity. Furthermore, in the institution of permanent courts such as the International Criminal
Court (ICC), universal jurisdiction delivers the meaning of rules of legal codification through a
model of diffusion from a central legal authority. The general understanding is that the Rome Statute
providing the guidelines for this procedure is built upon a long history of treaty and customary
international law and, as such, does not lack democratic accountability. However, the way it was
designed to be ratified and embedded in the constitutional realm of individual states has thus far
been far too positive law-oriented, and does not take into account the socio-political investment
required for full adoption of the codification of international crimes that fall under the ICC’s
mandate, the prime example being crimes against humanity. In this regard, while an increasing
number of legal practitioners, observers, and scholars make observations about the hybridization,
fragmentation and cross-fertilization of international law—and indeed opt for the term transnational
law in its place—legal discourse in the field of international criminal law has gone in the other
direction and become increasingly more focused on centralization and standardization, with the
universal reach of a single institution and jurisgenerative conduct identified as its raison d’etre. My
argument here will be that institutions like ICC, when looked at under the lens of transnational law,
in fact perform a double action. They engage in both jurisgenerative and jurispathic conduct,
though which one of these practices is more important for the legacy and saliency of the institution,
or indeed for the effectiveness of punishment of international crimes, remains undetermined. To
put it differently, institutions such as the ICC engage in both primary and secondary rule-making
in contemporary accountability regimes, though often their conduct is discussed almost entirely as
one or the other.
A. Fragmentation in International Law and the Fragile Balance of Primary and Secondary
Rules in Accountability Regimes
Concerns about the increasing diversity of secondary rules and the desired unity of primary
rules of international law reveal themselves fully in the context of debates on the sources of
international law, responsibilities of legal institutions, and normative conflicts. As suggested earlier
in this chapter, the relative autonomy of a wide range of regimes co-existing in the area of
international law is seen by some as a guarantee of its growing effectiveness in terms of its primary
rules, rather than as jeopardizing the unity and coherence of the overall substantive structure of the
international legal order. In other words, diversification and differences in interpretation are seen
as an integral part of the general enterprise, and hence secondary rules are not considered to
constitute a threat to primary ones. Furthermore, the apparent coherence of the doctrines espoused
by international courts and tribunals is taken as further proof that it is possible to talk about a single,
unitary accountability regime in international criminal law that can accommodate the variations
between judgments produced within international, domestic and regional legal regimes. In this
context, if we are to talk about an accountability regime in any branch of international law, there
has to be an identifiable remedial potential of judicial functions. There is, of course, a significant
difference between substantive and remedial law. The former is generally understood to stand for
statutory or written law that governs the rights and obligations of those who are subject to it.
Therefore, it defines the legal relationship of individuals and the society, or the relationship between
society and the state. Remedial law, on the other hand, is a version of procedural law, and it
comprises the rules by which a court hears and determines what happens in civil or criminal
proceedings. In other words, procedural law—including remedial law—provides the method and
means by which substantive law is made and administered. While substantive law defines rights
and duties, procedural law is defined as the body of legal rules that provides the machinery for
enforcing those rights and duties. The principle of delivering and promoting justice requires both
substantive and procedural law. In Hart’s language of jurisprudence, law has to embody a strong
link between primary and secondary rules, which then necessitates both internal and external
accountability in the area of international law. Organs of international law are not only fragmented,
but they operate at multiple levels of jurisdiction and face a variety of claimants, the state
constituting only one amongst many. These multiple fora entertain different procedural rules and
substantive norms, and are thus likely to yield different results attending to the same case. Their
limited locus standi and restrictive jurisdiction does affect their competency. However, if we go
back to the debate on transnational law within legal pluralism, neither variations in procedures nor
oscillations in competency stand as a death sentence against a nascent legal regime. Instead, it is
possible to argue that in the area of international law, and specifically with regards to accountability
regimes, work on primary and secondary rules is to be undertaken almost simultaneously. This is
precisely what organs such as the ICC have embarked upon. In that sense, determination of the
success of a regime of universal jurisdiction should not be undertaken solely in terms of whether
domestic courts adapt the Rome Statute, or the depth and width of harmonization practices at a
global scale. Equally important is the spirit of the laws endorsed by organs like the ICC. We must
turn our attention to the primary rules of international criminal law falling under such legal bodies’
mandate, and examine whether the Court initiated a process of transnational regime formation in
this regard.
B. The Project of International Law and the Jurisprudential Promise of ICC: Disciplining the
Domestic Realm through International Criminal Law?
Public international law is commonly viewed as oscillating between a Kantian cosmopolitan ethos
and harmonized adjudication regarding conflict of laws and other jurisdictional matters at the
international level. Regimes of trade law, human rights law, environmental law, and of course
international criminal law are all testimony to the latter tendency, in varying degrees. The former,
cosmopolitan impetus to manage and resolve “global problems,” on the other hand, often finds its
best expression in the form of institution-building with an international reach and a purportedly
global mandate. Traditional legal-political responses to institutional developments in the area of
international legal regime formation— namely, constitutionalist defense tactics disputing the
accountability of transnational institutions, or invitations extended by the legal pluralism of earlier
decades celebrating institution-building as a possible platform for dialogue—seem inadequate to
deal with the task at hand: defining the project of international law in the age of late capitalism,
neo-colonialism, and globalization. Meanwhile, the knee-jerk reaction of reducing international
public law to a phantom mechanism built to advance functional objectives of neo-liberal
harmonization, and serving only the interests of the powerful, is also a somewhat misleading take
on this issue. Surely, aspects of the managerial vocabularies of international regulatory and legal
practices fit the definition of an overarching plan of neo-liberal global constitutionalism, as do the
markedly negative implications for the Global South of acts committed by select international
institutions. However, not all new formations in the area of public international law can be
explained by these broad strokes.
The establishment of the permanent International Criminal Court is one area that has a double
promise vis-à-vis the post-WWII history of public international law. Strictly speaking, the ICC does
not allow legal pluralist renditions of criminality in its chosen areas of authority. Despite the worries
about it being an integral part of the neo-liberal agenda of forcing postcolonial and post-imperial
societies into submission for further capitalist expansion and deeper forms of accumulation, its
nexus lies in the area of what may be called ‘disciplining practices’ emanating from a normative
standpoint regarding egregious crimes such as war crimes, genocide, slavery, and crimes against
humanity. Its existence also owes much to widespread NGO movements both within Europe and
from the Global South, as these actors struggled for decades and made alliances to counter the US
hegemonic position in the area of international criminal law prior to the foundation of a permanent
criminal court. This aspect of the ICC’s history gave the institution an unusual degree of legitimacy
for an institutional organ with such outreach potential—or at least this was the case at the outset.
Last but not the least, the regime of international criminal law envisaged by the ICC cannot be
grasped merely through the language of sovereign acts of states culminating in customary practices
or treaty obligations. This signals a “transnational” quality concerning the ICC’s mandate. The
institution is designed to resolve cases of state criminality within the parameters of a legally
identified exercise of international public authority based on the principle of universal jurisdiction.
As such, the subject matter of international crimes such as crimes against humanity does not refer
to disputes arising between states or states and high-ranking individuals. Rather, it primarily
concerns the criminal acts of states against their own societies.
In terms of its jurisdictional reach, the ICC operates on the principle of
complementarity/subsidiarity. Thus, the first choice for adjudication of crimes falling under its
jurisdiction is identified as domestic courts acting in accordance with domestic law, or specialized
hybrid tribunals subject to supervision by domestic courts. However, the founding document of
the ICC—the Rome Statute—clearly indicates that in cases when such remedies are deemed not
available or not realizable, general international consent authorizes the adjudication of such crimes
by the ICC itself. Whether resolved by resort to domestic or international courts, international
crimes falling under the ICC’s mandate are therefore squarely identified as matters of international
law. The criminal law regime attending to them is to be distinguished from reciprocal and
consensual adjudication as dictated by treaty law. Furthermore, the ICC is a court of prosecution,
and not a civil court. In this context, international criminal law as codified by the ICC is not based
on the regulation of a relationship between juridical equals. Following the standard criminal law
format, it accrues a privileged position to the party representing public authority, whether this is the
ICC or a domestic court, and calls upon those who allegedly committed crimes against the society.
In this case, the latter party is in principle defined as the whole of humanity. If so, the ICC, as one
of the prime institutional embodiments of what may be deemed transnational law, acts as a semi-
autonomous international adjudicative body that reviews and passes judgment upon individual
conduct in the international public sphere.
The ICC is semi-autonomous because its decisions are insulated from higher court supervision or
judicial review mechanisms, and its ties with the UN are symbolic rather than legislative. It is
international because its authority derives from a treaty, the Rome Statute, as well as customary
understanding of the crimes listed under its jurisdiction. Constituted at the transnational level, the
ICC embraces the role of disciplining the governmental actions of states and individuals
committing crimes against societies and communities, as defined by the conceptual architecture of
international criminal law. In this context, what makes the ICC a noteworthy specimen of
transnational law is not its reach per se. Nor is it the ICC’s inevitable exposure to and yet determined
resistance against forces of legal fragmentation and hybridity in the global realm. The ICC’s
capacity for legal norm and conduct building is worthy of attention. Owing to the transnational
dictate of the ICC’s mandate, tribunals established under the law of individual states are invested
with authority to try crimes defined by the ICC on the basis of the principle of universal jurisdiction.
As such, the ICC produces and perpetuates a legal discourse, even when it does not try a given case
itself. Based on the principle of universal jurisdiction, although the ICC is uniquely removed from
the domestic legal system of any given state, its codes are to be integrated into the domestic
enforcement structures of all states. As a result, the power of this institution to make and enforce
legal claims of criminality stands apart from its predecessors such as the Nuremberg and Tokyo
military trials, or other international courts such as the International Court of Justice. Mainly for
this reason, the regime of international criminal law as embodied by the ICC should be recognized
as constituting an exceptionally important and powerful manifestation of transnational law. No
other system of court-based international adjudication has as much sway in terms of substantiating
forms of criminality and enforcing methods of adjudication within a global compass. Even if a
given state has not signed and ratified the Rome Statute, the dictate of universal jurisdiction obliges
its articles to be considered as positive international law, and thus to be taken into direct
consideration in the domestic realm. In this context, it would be apt to identify ICC-based
codification of international crimes as the fullfledged exercise of a disciplinary regime with
transnational qualities. This is symptomatic of a certain strand of institutional developments in the
area of public international law readily identified by the third wave of legal pluralist scholarship.
In order to understand the workings of the regime of international criminal law, the manner in which
ICC operates needs to be examined closely. This includes topics such as the court’s determination
of the exhaustion of all local remedies, leading to the establishment of hybrid tribunals based on
the principal of universal jurisdiction, and the adaptation of the Rome Statute by domestic courts,
with the implications of this process for national criminal law. While all of these issues clearly
invite further inquiry, the remainder of this chapter will only focus on the politico-legal reasoning
upon which the ratification of the Rome Statute in the realm of domestic law has been envisaged,
and how this process relates to the “international law as transnational law” debate.
C. International Criminal Court and the Ideal of Complementarity in International Law
A key statement that defines the ICC’s ideal role in public international law was uttered in 2003,
just after the Court’s founding, by none other than Luis Moreno-Ocampo, Chief Prosecutor of the
Court. As he was sworn into office, he declared that “the absence of trials before this Court, as a
consequence of the regular functioning of national institutions, would be a major success.” The
legal reference here is to the Rome Statute’s complementarity principle, which permits the Court
to exercise its jurisdiction over a serious international crime only if no State is willing and able to
prosecute the crime itself. The determination of the likelihood that defendants will receive due
process in national proceedings is part and parcel of this legal stipulation The fact that most national
criminal justice systems may not provide such guarantees in states where atrocities have been
committed, or where a civil war ensued, no doubt renders this idealistic picture somewhat
incomplete. In some instances, ICC deferrals may in fact expose the alleged perpetrators of
atrocities to national judicial systems that may not be interested in or capable of providing them
with due process. This in turn may increase the likelihood of wrongful convictions, which in turn
would erode the ICC’s legacy, if not credibility. Furthermore, the ICC was never envisaged as an
appellate body to review decisions of domestic courts or indeed as a human rights monitoring organ.
In this regard, making decisions about the legality of procedural matters in domestic courts in cases
related to international crimes does not fall within its mandate. At best, the Court has the authority
to determine the unwillingness or inability of a state party to prosecute on a case-by-case basis,
inquiring whether national proceedings were fair given the totality of the circumstances in each
particular setting. However, if a trial proceeds in a national court, the ICC has no authority to vacate
a national conviction resulting from a trial deemed not to have been conducted independently or
impartially in accordance with the norms of due process that the court itself embraces.90 In other
instances, the ICC’s identification of specific crimes may never be fully approved by the domestic
courts that claim jurisdiction over the criminal trial of alleged individuals. A case in point is that of
Augusto Pinochet, and the “Bermuda triangle” that formed between the Spanish Judge who claimed
universal jurisdiction to try the retired dictator for crimes against humanity, the British House of
Lords that erred, at least to an extent, on the side of diplomatic immunity, and the domestic courts
that were at best hesitant to try the case.91 Similar examples can be found in cases of the ICC’s
direct or indirect
alleged perpetrators are to be tried. On this issue, see Mark S. Ellis, “The international criminal court and its implication
for domestic law and national capacity building" Fla. J. Int'l L. 15 (2002): 215; Jann Kleffner, "The impact of
complementarity on national implementation of substantive international criminal law" (2003) 1 Journal of
International Criminal Justice 86; Dwight Newman, "The Rome Statute, Some Reservations Concerning Amnesties,
and a Distributive Problem" (2004) 20 Am. U. Int'l L. Rev. 293; Carsten Stahn, "Complementarity, amnesties and
alternative forms of justice: some interpretative guidelines for the International Criminal Court" (2005) 3 Journal of
International Criminal Justice 695; Simeon Sungi, "Is it pragmatism or an injustice to victims? The use of plea
bargaining in the International Criminal Court" (2015) 7 Journal of Theoretical & Philosophical Criminology 21; and
Yitiha Simbeye, Immunity and international criminal law (Routledge, 2017).
90 See Marta Bo, "The Situation in Libya and the ICC’s Understanding of Complementarity in the Context of
UNSCReferred Cases" (2014) 25 Criminal Law Forum No. 3-4; Minhas Majeed Khan and Abbas Majeed Khan
Marwat, “International Criminal Court (ICC): An Analysis of its Successes and Failures and Challenges Faced by the
ICC Tribunals for War Crimes" (2016) 11 Dialogue 243.
91 On the Pinochet trial, see Cath Collins, Katherine Hite, and Alfredo Joignant, eds., The Politics of Memory in
Chile: From Pinochet to Bachelet (Lynne Rienner Publishers, 2013); and Accatino, Daniela, and Cath Collins,
involvement in Sierra Leone, Cambodia, Lebanon and Iraq. Therefore, the issue of
complementarity could be said to provide more questions than answers in the area of public
international law. However, if we shift our lens from public international law to transnational law,
another picture emerges.
D. The Mandate of International Criminal Court: Jurisprudential versus Political Realities
In reality, the discrepancies observable in the application of universal jurisdiction of the
ICC’s codification of international crimes are indicative of the gap between the jurisprudential and
political dimensions of accountability regimes in international law. The issues and concerns
articulated above are informed by my conviction that in order to make a categorical observation
about international legal institutions with a transnational mandate, we must first attend to the
underpinnings of their legal operations as well as the symbolic and political value of their
jurisdictional characteristics. Determining of the significance of ICC-like institutions with respect
to the grand project of launching a post-Westphalian era in international law is a crucial step in this
direction. Indeed, the ICC has commonly been presented as a tour de force heralding a new age,
wherein state interests are trumped by universal, transnational, and of course humanitarian ones.
Similarly, from a jurisprudential point of view, the Rome Statute is considered to have made a
marked change in the attribution of responsibility and the curtailment of impunity for crimes of
grave nature and wide scope. Historically speaking, the trend that started with the Nuremberg and
Tokyo trials significantly lost steam during the Cold War years.92 Following the cascade of
developments in international criminal law, including the endorsement of the International Military
Tribunals of Nuremberg and Tokyo in 1946, the charting of the Genocide
“Truth, Evidence, Truth: The Deployment of Testimony, Archives and Technical Data in Domestic Human Rights
Trials" (2016) 8 Journal of Human Rights Practice 81.
92 On the trajectory of developments linking the Nuremberg and Tokyo trials to the emergence of the ICC, see inter
alia, Steven Fogelson, "The Nuremberg Legacy: An Unfulfilled Promise" (1989) 63 S. Cal. L. Rev. 833; Robert Wolfe,
"Flaws in the Nuremberg Legacy: An Impediment to International War Crimes Tribunals' Prosecution of Crimes
Against Humanity" (1998) 12 Holocaust and Genocide Studies 434; Steven Ratner, Jason S. Abrams, and James L.
Bischoff, Accountability for human rights atrocities in international law: beyond the Nuremberg legacy
(Oxford University Press, 2009); Hans-Peter Kaul, "The Nuremberg Legacy and the International Criminal
CourtLecture in Honor of Whitney R. Harris, Former Nuremberg Prosecutor" (2013) 12 Wash. U. Global Stud. L. Rev.
637; Benjamin Ferencz, "A Nuremberg Legacy: The Crime of Aggression" (2016) 15 Wash. U. Global Stud. L. Rev.
555.
Convention in 1948, the Geneva Convention on armed conflict in 1949, and the attached Code of
Offenses against Peace and Security of Mankind, and subsequent UN covenants related to human
rights law, not much more was done. Until the unfolding of the catastrophic events in the former
Yugoslavia and Rwanda, the constitution of a stable system of substantive international law to
attend to human rights atrocities committed during war or peace was not a priority for UN
bureaucratic and legal circles. This was despite the fact that crimes against humanity were not at
all absent from the international scene, including a wide range of disturbing developments in the
former Soviet Union and Eastern bloc, Latin America, the Middle East, Asia, and Africa.
In summary, the unique area of intersection that the international tribunals of the 1990s came
to embody—signifying a calculated overlap between international human rights law, humanitarian
law, and international criminal law—was perhaps intimated and yet by no means fully articulated
by the immediate post-war trials and the trajectory that followed from them in international criminal
law. Even the International Law Commission resumption of work in 1983, after a long hiatus of
almost 35 years, was tainted by the debate among states concerning how to define “aggression”
committed by states. It took another 13 years to reach a state of semiresolution in the form of a
Draft Code. The culmination of these efforts finally came in the form of the constitution of a
permanent International Criminal Court in 2002. Yet, for jurisdictionrelated matters, whether this
should be regarded as a watermark remains far from obvious. What could be argued with much
greater comfort is that the ICC is part and parcel of a sea change in norm creation and norm
inducement at the transnational level. Its internal logic may be at odds with the traditional
operations of international law, and from that angle, universal jurisdiction lacks jurisdictional
certainty. If, however, universal jurisdiction is taken as a discursive tool honed to circumscribe
domestic variations in the determination of criminality in categories delineated by the ICC, then
the matter will assume novel dimensions, as will be discussed in the last two chapters of this work.
CONCLUSION
The purpose of this chapter has been to provide a conceptual map (hence the use of
“topography” in its title) of select examples of existing scholarship on the workings of international
law as it pertains to the dictum of universal jurisdiction. Though the review presented here is by no
means comprehensive, it is symptomatic of most pronounced trends in the current reconfiguration
of the debate on the nature and reach of international law. In this context, I analyzed the merits and
failings of the model of centrifugal diffusion in international law in the context of accountability
regimes particularly in light of the claims made by select schools of thought related to legal
pluralism. Beginning from the foundational premises of the third wave of radical legal pluralistic
scholarship, I commenced an examination of the normative boundaries of the applicability of
international criminal law codified by a transnational body such as the International Criminal Court
(ICC) in local and national settings. This examination will be continued throughout the rest of this
thesis. With particular reference to crimes against humanity, and attending to the institutional,
normative and political aspects of universal jurisdiction, the following chapters will analyze the
context and efficacy of attempts at their adjudication in the Global South. The aim of this opening
chapter was to foreground this debate in legal theory.
The history of politico-legal practices leading to the foundation of a permanent court is
primarily Europe-bound, though its emergence involved a strong component of Global South and
non-state participation. As is, ICC’s mandate defined by the Rome Statute has far-reaching global
implications. Indeed, a crucial part of its operations and the principle of universal jurisdiction
embraced by the court depend on the unassailable equation of morality and law, particularly in the
case of crimes against humanity. Meanwhile, studies of international politics indicate the absence
of a widespread ethics of responsibility or societal engagement to provide international criminal
law with a final say in this area. Hence we witness a clearly identifiable contradiction between the
mandate of a transnational legal institution and the realities of the application and adaptation of
international law produced or endorsed by it. This is a delicate disjuncture, and one that cannot be
handled solely by legal pluralism in its early or later versions.
The original concern behind the debate on the ICC presented in this opening chapter was to
determine whether international tribunals and courts indeed embody a new kind of relationship
between socio-political, substantive/normative, and legal aspects of public international law and
thus constitute an exemplary case for transnational law. A related query was whether international
criminal law has achieved the status of a transnational legal regime and assumed a position above
and beyond the interests and immediate involvement of the states and societies affected by it. If so,
could it indeed sustain the kind of criticism that was raised by schools of thought such as TWAIL
scholarship? The answers to both lines of questioning proved to be highly conditional. Here, the
issue is no longer the codification of law or even juridification processes themselves. In public
international law, codification customarily refers to the articulation of binding legal rules, otherwise
knows as “positive law.” The “codification movement” in legal conduct emerged out of the post-
Enlightenment context, and took root in European societies during the late 18th century in the form
of civil and criminal codes. It reached its high point with the enactment of the French Napoleonic
Code in 1804. No doubt the relationship between domestic and international criminal codes, and in
particular the embedding of international law within constitutional or domestic criminal law is a
complex one. However, the applicability of transnational law in domestic contexts is only a small
part of the problem. Legal pluralism scholarship reveals that the substantive meaning of law in
changed contexts and scales is a much more significant issue in the workings of transnational law.
In the specific case of international criminal law, this body of law has long been considered
an “autonomous branch” of criminal law, as it only deals with “international crimes.” Similarly, the
institutions within which such crimes are to be adjudicated have been designated courts and
tribunals, set up to try legal and natural persons who have incurred an international criminal
responsibility. This is a distinct category in comparison to criminal responsibility as it has been
defined within the domestic context, or later on, in cases of crimes against humanity and genocide
that impose upon any given constituency the obligation of universal jurisdiction. In the context of
the ICC, international criminal law clearly departs from the classical understanding of international
law as an amalgamation of treaties and conventions regulating relations amongst states. Yet it never
comes close enough to domestic jurisdiction in terms of having the expansiveness to deal with
crimes that are the business of the state or society within which they were committed, or upon
whom costs and damages were inflicted. Neither does it entirely manage to become transnational,
as the court’s emergence was predicated upon state consent and the continuation of its operations
also demand long-term state support. Heren lies the conundrum for legal scholars and international
jurists alike. Although the ICC and similar transnational organs are not predicates of a unified legal
system whereby national laws would be deemed second-order unless evidently on par with the
Court’s mandate, they nonetheless strive for the establishment of universal rules of adjudication for
crimes codified under their aegis. Consequently, they push for the enforcement of standard practices
via public international law. However, the way they go about implementing this “project” matches
the definition of transnational law, due to the nature of fragmented, overlapping regimes held
together through persuasion, disciplining strategies, harmonization practices and at times brutal
force.
The notion of a global order is highly contested amongst scholars of international law. Global
disorder, a multiplicity of regimes, and polycentric systems concepts are much more readily
embraced in describing the status quo in this field of law. The unique offer of radical legal pluralism
and reflexive legal theory scholarship is that such disorder is not to be seen as symptomatic of
chaos. On the contrary, it is regarded as the expression of clashes of interest, conflicts of norms,
and different articulations of the desire for socio-political change. In this positioning of
diversification as a necessary feature of transnational legal regimes, the tensions endemic to
institutions such as the ICC and their mandates begin to appear pro forma. However, the real
question about the viability of universal jurisdiction in international criminal law remains
unattended to. The issue is not how to make domestic courts and legal systems adapt the ICC’s
definition of criminality, and adjust their codes of legal conduct according to what the Court dictates
as proper adjudication. Whether individual accountability provides meaningful sanction and could
deter governments and societies from committing gross human rights violations is not the issue
here, either. Even in the presence of a comprehensive criminal code substantiated by an
enforcement architecture, limitations exist and will continue to exist. Diverse norms entertained by
different domestic constituencies as to what constitutes a crime against humanity, the power
dynamics affecting the identification of problem cases, as well as the determination of the venue
and form of trials directly influence both the scope of international criminal law and the set of
mechanisms available for its practice. In other words, the Rome Statute ratification package is
imbued with structural variations that are regarded as permanent features of transnational law in
other instances. The grand project of selective and targeted erosion of state sovereignty in the name
of a higher common good for global society may well be an esteemed legal prescription;its socio-
political validation, however, is an entirely different matter. As the practices of public international
law evolved, they did so in the context of conflicts of interest, wars, negotiations, and partial
ramifications under the shadow of global power struggles and historically embedded forms of
domination. Therefore, appraisal of the attainability of the goal of institutionalizing accountability
for crimes against humanity requires that legal scholarship expand beyond the realm of criminal
liability and setting up evidence-based fair trials.
Transnational law, as tackled by recent debates within legal pluralism debates, is one venue within
which we may be able to link accountability regimes to other areas of law in a global context. This
would not only reduce the burden of the ICC’s exceptional status regarding the application of the
principle of universal jurisdiction. It could also bring us closer to the substantiation of injurious acts
exemplified by crimes against humanity legislation in local contexts through domestic absorption
of the normative address of this specific category of crimes exemplifying state criminality. In
conclusion, as I have highlighted, the historical use of notions of universality and objectivity in
international law first and foremost served First World socioeconomic and political interests. One
of its end results has been the codification of conditions that sustain old and new forms of
dispossession across the Global South. As evidenced by analysis of the premises upon which the
ICC operates, these interests have now taken on a transnational character and are being pursued
through an elaborate network of meta-regulatory regimes beneficial to emergent transnational
capitalist classes cutting across the North and the South. Transnational legal regimes are most often
used to diffuse neoliberal economic reforms on a global scale, resulting in the embedding of various
legal precepts in domestic political and socioeconomic settings. Critical international law scholars
appear somewhat ambivalent in their efforts to craft disciplinary proposals for revealing this dark
underbelly of the global legal order, with the exception of the approaches of TWAIL and post-
Marxist legal pluralism. While a reflective type of global legal pluralism recognizes the legitimacy
of lawmaking as executed by non-institutional actors, the field of legal theory remains perplexed
as to how we reconcile the pursuit of legal accountability in a highly stratified and unjust world.99
legal-political terms. See Giovanni Arrighi, The long twentieth century: Money, power, and the origins of our times
(Verso, 1994); Giovanni Arrighi, "Lineages of empire" (2002) 10 Historical Materialism 3; Giovanni Arrighi,
"Hegemony unravelling-2" (2005) 33 New Left Review 83, and Giovanni Arrighi, "Spatial fixes, switching crises, and
accumulation by dispossession" Global social change: Historical and comparative perspectives (2006): 201212.
99 See Nancy Fraser, Scales of justice: Reimagining political space in a globalizing world (Columbia University Press,
2009).
Chapter II. In the Beginning, there was the State? A Critical Review of Compliance to
International Law regarding Universal Jurisdiction
INTRODUCTION
The last hundred years have given us at least three attempts at the creation of an
institutionalized system of international criminal law. The key issue involed in this idea’s
prominence is that of universal jurisdiction. The notion of a universally enforceable criminal law
dates back to the Treaty of Versailles in 1919. This was also when the idea of an international
criminal court first emerged; the realization, implementation, and application of such a court,
however, were not tried until after World War II. To address the crimes committed under the
National Socialist regime in Germany, an international military tribunal was erected in Nuremberg,
based on the London Charter of the International Military Tribunal, which was followed by the
Tokyo Tribunal. Later, after the Cold War, the United Nations decided to establish ad hoc courts
against the backdrop of gross humanitarian law violations in the former Yugoslavia and Rwanda.
Then in 1998 the Rome Statute of the International Criminal Court (ICC) was adopted, which came
into effect on July 1, 2002. The ICC was followed by various internationalized and hybrid courts,
set up inter alia to cope with the conflicts in Kosovo, Sierra Leone, East Timor, and Cambodia. All
of these post-ICC institutions sought the ideal of a standardized legal frame of reference for
international crimes. Alas, this did not alleviate the problem of the state-centric nature of
international criminal law.
In this chapter, I will concentrate on the issue of causes of compliance (or lack thereof) to
international law in the larger context of the debate concerning the emergence of a standardized
frame of reference for universal jurisdiction. This is a continuation of the questioning developed in
the first chapter concerning the nature of the transnational law as it applies to the condition of states
and societies in the Global South, During the last few decades, the long-standing divide between
those who believed that international rules have an effect on shaping state behavior and those who
saw such rules as epiphenomenal or, worse, as imposed, has given way to an increasingly complex
debate. The proliferation and evolution of international legal agreements, organizations, and
judicial bodies in the aftermath of the Cold War years (1947-1991) provided the background for the
heightened attention paid to the role of international law in determining interstate and transnational
politics. In particular, the phenomenon of legalization and adjudication of state criminality under
the aegis of international criminal law raised several new questions. What factors affect the choice
to resort to international law? When is such a recourse a choice and when is it imposed? Upon
whom is international law imposed and under which circumstances? Does the use of international
law make a difference in how states behave when faced with their own criminal conduct? What
issues emerge from critiques emanating from the post-colonial world and the Global South at large
concerning the use and abuse of international criminal law? These are just a few of the rather
troubling concerns emerging in the post-ICC landscape of international criminal law.
In this chapter, I will present a survey of some of the recent developments in the study of
compliance to international law in both international relations (IR) and international law (IL)
literature with a specific emphasis on universal jurisdiction. Here, compliance is distinguished from
the related but distinct concepts of implementation and effectiveness. Broadly speaking, the focus
of the present discussion is not compliance with treaties, but rather with the broader category of
rules that constitute “customary international law.” Based on a critical review of some of the major
theories advanced by IR and IL scholars from 1980s onwards, my aim is to identify a number of
common questions that guide the debates in both fields concerning the nature of international
criminal law, in particular with reference to the notion of universal jurisdiction. In studies on
international criminal law, comparatively little attention has been paid to theoretical questions
pertaining to universal jurisdiction. This chapter focuses less on the lawfulness of universal
jurisdiction and more on the way the basic concept is treated by these two bodies of scholarship in
the context of how they relate to the state as the basic unit of international law. This is of utmost
importance in terms of developing a robust framework for furthering the debate on state criminality
and identifying the limits of international criminal law for introducing, operationalizing or
enforcing criminal jurisdiction measures based on an overarching, formulaic regime of
accountability.
I. NEMO ME IMPUNA LACESIT? THE ETHOS OF UNIVERSAL JURISDICTION104
Universal jurisdiction is a specific legal doctrine dictating that domestic courts try and
punish perpetrators of a select set of crimes so heinous that they amount to crimes against the whole
of humanity, regardless of where they occurred or the nationality of the victim or perpetrator, which
otherwise constitute the standard nexus requirements in international law. Under its purview fall
piracy, slavery, crimes against humanity, war crimes, torture, and genocide.105 Universal
jurisdiction thus constitutes a significant departure from the traditional
104 This Latin phrase, literally meaning “no one assails me with impunity,” was the motto of the Royal Stuart
Dynasty of Scotland from the reign of James VI onwards (1578-1580). It was also adopted as the motto of the Scotish
regiments in British Army. See Norren Burrows, "Nemo Me Impune Lacessit: The Scottish Right of Access to the
European Courts" (2002) 8 Eur. Pub. L. 45.
105 At present, there are two main approaches to universal jurisdiction. The first seeks to apply the procedures of
domestic criminal justice to violations befitting international criminal law standards. This is done with reference to
legal codes embodied in United Nations conventions, or via authorization by national prosecutors to bring offenders
into their jurisdiction through extradition from third countries. The second approach is endorsed by the ICC and is in
accordance with its founding treaty of Rome Statute. The closest analogous historical concept to the contemporary
notion of universal jurisdiction is hostes humani generis [enemies of the human race]. However, this particular term
has only been applied to pirates, hijackers, and outlaws whose crimes were typically committed outside the territory
of any state. A state engaged in adjudicating crimes based on universal jurisdiction backs its claim on the grounds that
the crime committed is considered an international crime. The best example of this to date was Belgium’s 1993 law of
universal jurisdiction, though it was amended to reduce its scope in 2003. The creation of the ICC did not reduce the
need to create further domestic universal jurisdiction laws, since the Court is not entitled to judge crimes committed
before 2002. For further debate on the intricacies of the concept of universal jurisdiction, see Slaughter, Anne-Marie,
and William Burke-White, "An international constitutional moment" (2002) 43 Harv. Int'l LJ 1; William Burke-White,
"A community of courts: toward a system of international criminal law enforcement" (2002) 24 Mich. J. Int'l L. 1;
William Burke-White, "International legal pluralism" (2003) 25 Mich. J. Int'l L. 963; William Burke-White,
"Regionalization of International Criminal Law Enforcement: A Preliminary Exploration" (2003) 38 Tex. Int'l LJ 729;
David Wallach, "The Irrationaity of Universal Civil Jurisdiction" (2014) 46 Geo. J. Int'l L. 803; Abhimanyu George
Jain, "Universal civil jurisdiction in international law" (2015) 55 Indian Journal of International Law 209; Aisling
O'Sullivan, Universal jurisdiction in international criminal law: the debate and the battle for hegemony (Routledge,
2017); and Erik Voeten, "Competition and Complementarity between Global and Regional Human Rights Institutions"
(2017) 8 Global Policy 119.
approach to international criminal law that requires a direct connection between the prosecuting
state and the particular crime. States could enact national legislation granting domestic courts the
power to assert universal jurisdiction over particular crimes as well as international courts such as
the ICC having the power to litigate. However, the scope and content of universal jurisdiction laws
vary significantly among states. Although domestic implementing legislation may be necessary for
national courts to exercise universal jurisdiction, the contemporary framework of international
conventions and international customary norms provide the legal grounds for the exercise of
universal jurisdiction by states parties even without such a prerequisite.
The doctrine of universal jurisdiction asserts that for a select body of “international crimes,”
the perpetrators in question should not escape trial by invoking doctrines of either sovereign
immunity of states that is used as a standard defense of domestic capabilities, or, the sacrosanct
nature of national frontiers again based on the principle of state sovereignty. Proponents of universal
jurisdiction further argue that it is not always possible to prosecute crimes by the states in which
they were committed. For example, after a devastating conflict or war, states may lack the necessary
legal infrastructure and resources to carry out an investigation and prosecution. Alternatively,
governments may intentionally fail or refuse to prosecute a crime that occurred within their
territory. Crimes and conduct subject to prosecution may have been sanctioned or supported by the
state itself, or the perpetrators of such crimes may be serving as government officials or could have
allies within the ruling regime. Thus, there may be a lack of political will to pursue investigations,
preventing the prosecution of alleged crimes. At least in theory, in the absence of accountability,
other states may seek to initiate prosecutions on the basis of universal jurisdiction in order to
prevent impunity and provide justice for victims of such crimes. At least some states may feel that
they have a common interest, if not obligation, to punish perpetrators of serious crimes subject to
universal jurisdiction. States may also be under pressure to pursue prosecutions due the presence
of a perpetrator within their borders, led by the desire for their territory not to be a safe haven for
criminals. Generalizing this stance to the entire system of states as an absolute rule, however, is a
different matter.
Indeed, I would posit that universal jurisdiction remains a controversial principle and
practice in international law due to the state-centric nature of the very enterprise, as well as the
power dynamics that shape the relations between states, regions and international courts. In this
context, there are three instances that need to be re-examined to provide full background to this
peculiar body of jurisprudence. With the Treaty of Versailles in 1919, President Woodrow Wilson’s
new agenda for Europe led to the development of the League of Nations, and the emergence of the
Permanent Court of International Justice. As a result, this court was seen as a victor’s court. In
1945, the allied powers replaced the (by then defunct) League with the United Nations, which was
followed by the establishment of Nuremberg and Tokyo military trials. These too have been
generally named as trials that led to victor’s justice, despite the very valid reasons for which they
tried war criminals, albeit one-sidedly. The UN Security Council itself proved heavily problem-
laden in terms of misuse of its powers during the Cold War years. Following the collapse of the
Soviet Union in November 1989, for instance, the permanent members of the Security Council
cooperated in the unprecedented UN-backed strike against Iraq’s invasion of Kuwait in August
1990. This is commonly cited—both positively and negatively—as the beginning of a “new world
order.” The Iraq decision was followed by the establishment of two ad hoc tribunals for the
prosecution of crimes against humanity regarding the former Yugoslavia (1993) and Rwanda
(1994). Considerations of the desirability and sustainability of emergent institutionalized organs of
international law such as the International Criminal Court (ICC)—which is widely considered as
the third call for the adjudication of universal jurisdiction—developed against this background. The
ICC has also been under heavy attack from states in the Global South, as well as some in the West,
who claim that it delivers justice based on very selective criteria and picks its cases according to
political reasons rather than purely justice-related ones. In this “new world order,” which is the
historical context for the full-fledged embrace of the doctrine of universal jurisdiction, the state is
not disappearing. Instead, it may be apt to argue that it is unbundling into separate, functionally
distinct parts. In addition, regional hubs of economic activity, political alignment, power, and
hegemony are becoming more pronounced. In such a multifaceted environment, courts, regulatory
agencies, executives, and legislatures are networking with their counterparts across the globe,
espousing a transnational system of governance and regulation. This has been the reality of
neoliberalism since the 1990s. And yet, curiously, both international law and international relations
scholarship on international criminal law lag somewhat behind and lack answers to many of the
most pressing challenges of the 21st century. Dominant schools of thought in this field continue to
hold the state so dear that all else fades into the background. In my opinion, this is the real tragedy
of the debate on universal jurisdiction, more so than the letter of the law itself or the uncertainties
concerning its application.
II. TWO SHIPS PASSING AT NIGHT? INTERNATIONAL LAW AND INTERNATIONAL RELATIONS
International law and international relations scholarship, as two interrelated and yet separate
disciplinary forms of knowledge, have traditionally approached the phenomenon of universal
jurisdiction from different and sometimes opposing perspectives. Consequently, their
understandings of the establishment of the ICC and its juridification of international crimes
exemplify rather contradictory treatments of universal jurisdiction. This is only partly due to a
conception of international law—seen as the study of the kind of law that governs states and other
international actors in their relations with each other—as prescriptive and heavily normative. In
effect, international relations scholars have long self-identified their field as the analysis of the
behaviour of states, and have been descriptive or explanatory but rarely openly prescriptive.
Following the emergence of regime theory, theories of institutionalism and institutional realism,
and in particular with the revival of liberal international relations theories, a rapprochement began
during the 1990s. As a result, a select but well-respected group of political scientists posited that
the development of international law should be regarded as an explanatory factor in the analysis of
state behavior. Similarly, an increasing number of influential legal scholars have become
increasingly interested in understanding the workings of international politics in order to make full
sense of the context out of which legal developments emerged, and later on were sustained or
negated. In the IL field, scholars such as Anne-Marie Slaughter and Robert Keohane identified at
least three ways that international lawyers and international law scholars could use IR theories: to
diagnose international problems and formulate better legal solutions; to explain the structure and
function of particular international legal institutions; and to examine and re-conceptualize particular
institutions of international law as well as international law as a domain in its own right. Despite
the rapprochement of the recent years, it is worth noting that the legacy of past divisions, not only
between these two disciplines but also within each of them, continues to cast a shadow on the study
of international law in general, and universal jurisdiction in particular. For instance, there are
several conflicting versions of what IR or IL scholars consider the international political system
that provides the foundations for international law. First and foremost, there is the classical
international relations conception of a world composed of regulated states, a vision that makes very
little distinction between the process of international legalization and the creation of international
institutions. According to this approach, the process of legalization is seen as the impetus behind
institutionalization and regulated practice of rules. In this context, distinct formations such as the
ICC are accepted as simply reflecting enduring sets of rules and norms in international politics.
Accordingly, decision-making processes in international law and their potential to shape the future
expectations, interests, and behaviour of international actors is a natural continuation of
international politics.
On this issue, of whether legalization is simply a reiteration of the political status quo or
whether it offers and reflects something more, international law theorists harbour a rather different
set of opinions. At least in critical IL scholarship, international legal institutions are not at all seen
as equal units. Furthermore, they are attributed a jurisgenerative function. Particularly from the
perspective of global legal pluralism, IL scholars emphasize the inevitability and even desirability
of multiple legal and quasi-legal systems purporting to regulate and direct legal actors in
international law. No doubt, the resulting plurality creates conflict between norms embraced by
different actors. However, it is presumed that legal systems must be equipped to address how best
to respond to the realities of conflicting demands and normative frameworks. In this sense, and
contrary to mainstream IR literature, in the context of critical IL studies law is described as a
platform for struggle. This line of inquiry also has a constitutional dimension, as it questions the
constitutive character of communities and their relationships with other communities, be they
international, transnational, national, or subnational. In this regard, international law is not to be
solely jurispathic, and bodies of law such as universal jurisdiction are not juridified to silence all
other and competing interpretations of what constitutes an international crime. The idea is to bring
different voices into the debate on what international law ought to be, thereby creating at least the
possibility that past injustices may be addressed if not remedied. In mainstream IR scholarship, as
already discussed, the degree to which a legal institution’s rules are obligatory, the precision of
these rules, and the delegation of legal authority to third parties to interpret, implement, and monitor
these rules determine the strength of a legal institution. According to these criteria, the ICC appears
as an exceptionally effective institution in international law, and the same applies to the process of
universal jurisdiction. The ICC applies and promotes a codified set of laws reified by the principle
of jus cogens, and it is an independent international court with a consent-based statute that is in turn
expected to be enshrined within the domestic legislation of signatory states parties. As such, it
constitutes a prime case for affirming that international rules and norms have a causative effect on
the behavior of states and societies, rather than merely being an outcome of already established
consent or brokered arrangements. This is an interesting point of convergence between the liberal
institutionalist theorists of IR and the normative theorists of IL. Indeed, the work done under the
banner of liberal institutionalism has a close affinity with that of idealist/normative legal
scholarship on international law, though the former may go so far as to wish for a conception of a
morality-based politics and a widespread mode of transgovernmentality in international relations.
The idealist perspective holds that human nature is both desiring and capable of mutual aid and
collaboration. Furthermore, states are considered only as one group of actors in the international
community, along with nongovernmental organizations, regional organizations, transnational
corporations, and of course individuals, who are seen as the constituent units of the international
system. Therefore, the idealist/normative stance emphasizes the importance of international law’s
confronting the state as well as other international actors, in the name of moral norms and principles
aspiring to the sustenance of the common good. The spirit of such a take on international law is
enthusiastically shared by liberal institutionalist scholarship in IR. The result is an amorphous
project of intellectual zeal, characterized by a maximum degree of expectation from international
law with a minimum degree of cynicism.
The history of the idealist-realist debate in IR theory shows that it was initially framed by
the realist camp, who constructed a unified “idealism” as a straw man to justify their theories of
global politics. The paradigm of idealism turned out to be very close to the staged antagonism
embodied in the sovereignty/anarchy discourse of the interwar years.124 Either way, the
winnertakes-all approach that shaped the traditional IR theories readily found a counterpart in IL
scholarship. At the same time, the darker conception of international law characterized by realist
discourse, amounting to an account of a world of self-interested states with calculative goals, never
entirely disappeared. Historically, this vision was endorsed and promoted by the core academic
institutions of IR in the Global North. Ultimately, it provided sustenance to the view that the state
is and will remain the inviolable actor in both international politics and international law. Realist,
and later on neo-realist, perspectives also insisted that states act solely in their own self-interest,
and that any international intrusion challenging state sovereignty is unjustifiable. This take on state
sovereignty has been upheld with reference to Article 2(7) of the UN Charter,
theory: a social scientific assessment. No. 1-2. Weatherhead Center for International Affairs (Harvard University,
2001).
124 Here, the aim of academic scholarship was defined as understanding dynamics of international cooperation and
discord. Theories of how international institutions work were developed in this context. The assumption of substantive
rationality has proved a valuable tool in pursuing such knowledge. From the 1990s onwards, the intellectual
predominance of the rationalistic approach has been challenged by a reflective approach, stressing the embedding of
contemporary international institutions in the larger socio-political realm. See Mark Neufeld, "Reflexivity and
international relations theory" (1993) 22 Millennium-Journal of International Studies 53; Ted Hopf, "The promise of
constructivism in international relations theory" (1998) 23 International security 171; Stefano Guzzini, "The ends of
International Relations theory: Stages of reflexivity and modes of theorizing" (2013) 19 European Journal of
International Relations 521.
prohibiting interference in the domestic affairs of a sovereign state barring specified circumstances.
Supporters of this view thus posit that international rules and norms are of consequence only if they
are in the self-interest of the states implicated by them. The resulting opposition between
idealist/normative and realist views of international law affected both disciplines, but is particularly
explicit in IR scholarship. Meanwhile, the difference between “instrumentalist” versus “normative”
lenses for examining international politics and international law led to a foundational crisis in both
fields. As an alternative, Robert Keohane made the observation that international [legal] institutions
are a crucial site for the alignment of interests with norms. As such, he argued, a composite
approach, bridging realism with idealism, is called for. Indeed, this debate between realists and
idealist-cum-liberals has reemerged as an axis of contention multiple times since the Cold War
years. In its latest form, the debate is concerned about the extent to which state action is influenced
by structures as opposed to process and institutions.
It is in this context that liberal institutionalism came to define the golden medium between
realism and idealism (though it stands closer to the latter than the former). Historically, there have
been both normative and positivist versions of liberalism, and thus liberal takes on international
law have produced both descriptive and prescriptive scholarship. The most current version of liberal
scholarship is built on the assumption that the “international community” comprises a range of
actors both within and across state boundaries, and accepts that state interests are to be regarded as
a complex product of the interests of actors within each state, as well as among states and other
actors. Liberal scholarship of late also assumes a variety of regime types. Yet it openly privileges
the liberal state, for the simple reason that it looks at trends in warfare and extended internal strife.
In that sense, this model also has widespread currency among scholars of democratic development,
human rights, and, of course, international law. Still, liberal institutionalism hardly provides all the
answers, or even manages to ask all the critical questions. Yet another venue for the debate
regarding the role played by international law in international politics, and the possibility of
universal jurisdiction in select areas such as crimes against humanity, has been post-conflict versus
process-oriented understandings of international institutions. The former is based on the assumption
that it is only in the aftermath of a major conflict, such as a world war or regional catastrophe, that
actors in international politics would cooperate and use incentive to come up with common
solutions. These attempts, however, are not regarded as having an accumulative effect. In this sense,
the post-conflict model of international law’s emphasis on “crisis periods” is very much in line with
realist and neo-realist schools of thought in international relations scholarship. Inherent in the post-
conflict model is the observation that the display of collective or even consultative will tends to
dissipate within a limited period of time, and states as well as other relevant actors return to their
self-interest guided motivations. What is left is the memory of cooperation calcified in international
treaties and institutions, which can become relics if they do not cater to the changing interests of
their framers. This model, needless to say, fails to pay attention to the fact that stability and lack of
war, in many cases, have enough appeal to be pursued afterward in the name of self-interest. In
contrast, the process-oriented model of developments in international law emphasizes continuity
rather than rupture, and is favourable to the idea of cumulative effects. For instance, according to
this perspective, the emergence of institutions such as the ICC is directly linked to a series of
evolving practices since the founding of the League of Nations. Just as the clash between normative
and instrumentalist optics identified by Keohane and others reflects paradigmatic differences about
how to understand international law in general and universal jurisdiction in particular, so too does
the more friendly-looking debate between conflict-related versus processoriented approaches to
international institutions, as each produces a radically different kind of scholarship with practical
implications. In the following pages, a select set of specific debates influenced by these currents of
scholarship will be examined. Here, only brief attention will be paid to the specificities of crimes
against humanity legislation and how it relates to international relations and international law
scholarship. The basic premises of how universal jurisdiction is defined in international law and
international relations scholarship constitutes the first step towards an all-encompassing analysis of
the legal-juridical conception of crimes against humanity.
III. THE INSIDE/OUTSIDE AND DOMESTIC/INTERNATIONAL DICHOTOMIES IN INTERNATIONAL
LAW
Since H.L.A. Hart’s seminal work The Concept of Law (1961), international law has been
commonly described as embryonic, and often treated as quasi- or soft law. This is mainly due to
the state-centric conception of law itself. The question of what makes international law “legal,” and
international relations’ inquiries about international order (moral as well as political) and what
sustains or undoes it, are interrelated. Whether it is possible to make this relation within the
dominant paradigms in either IR or IL scholarship, however, is highly questionable. Perhaps, then,
the job of the legal theorist who is at also home with international relations theories is to examine
how political communities behave in response to international legal predicamens, while vehemently
refuting the assumption that each community exists in isolation from the rest of the world. Kenneth
Waltz, a well-known representative of traditional international law scholarship, long insisted that
international relations and international law are both akin to a complete system, composed of an
overarching structure and interacting units. In Waltz’ work, structures define the relations of units
based on an ordering principle, referring to the way in which the units of the system relate to each
other. Specifically, Waltz spoke of two kinds of ordering principles: those characterized by relations
of equality and those characterized by relations of superiority and subordination. At the state level,
in the corresponding domain of domestic law, Waltz depicted a hierarchy within which select actors
had legitimate power to command. International relations, however, is based on the concept of
sovereign equality and therefore, at least to him, seemed much more open to anarchy than the
domestic realm.
Half a century later, although there is a growing body of work in international relations
scholarship dealing with the issue of international, law including debates on human rights,
humanitarian intervention, environmental issues, and international organizations, international law
as a concept is still defined primarily in a positivist and practice-oriented manner, with the
underlying sense of its propensity for anarchy. In IR theories on international law, either
assumptions of anarchy constitute the ordering principle of interstate relations as Waltz once
theorized, or discourses of hegemony and empire are seen as sustained through the edifice of
international law. Both are posed in opposition to a desirable social order based on justice and
fairness at the global level, which is of course the cosmopolitan call. In other words, according IR
analysis, international law either cannot sustain true legitimacy, or when it does, it cannot provide
a common language to promote justice and equality. For the “anarchy” school, international law is
devoid of an enforcing authority, while for the “hegemony” school, it is structurally incapable of
limiting excessive exercises of power or correcting injustices, defined both in historical and
contemporary terms. As already mentioned, this state of affairs in international relations theory
stands in stark opposition to the claims of traditional legal scholarship on international law, as the
latter attribute an independent force to norms, legal rules and, of course, international legal
institutions and organizations. If state behaviour is driven primarily by immediate material interests,
then normative factors and rules would have no significant impact on international politics in the
absence of an enforcement agency or a hegemonic power structure. On this issue, liberal
institutionalist and realist camps of IR theories converge. While liberal institutionalist scholars
differ from realists in their emphasis on states’ ability to cooperate, they nevertheless rely on the
same basic assumptions about the self-interested nature of states. As such, it is argued that states
follow legal rules only when there is a clear and tangible incentive.
Consequently, at least two of the dominant schools in IR theory treat international law as
an exogenous phenomenon eliciting context-dependent degrees of compliance. In other words,
international law is posited in fundamentally instrumentalist terms vis-à-vis international politics.
Of course there are other schools of international relations, such as constructivist and
poststructuralist scholarship, which have long challenged the basic assumptions of both realist and
liberalist renditions of international law. Of these, constructivists tend to emphasize the relational
nature of all things international, and put emphasis on the importance of norms and their
institutionalization in relation to the identities and interests of states. Still, they rarely engage in
debates on the nature of international law. This is because international relations and political
science are primarily constituted as disciplines premised on the Hobbesian opposition of anarchy
and order. If this opposition could be rejected, it would become possible to account for pervasive
asymmetries in international politics and law. However, this kind of dichotomous thinking rarely
emerges from the registers of traditional IR scholarship. Consequently, while norms such as
sovereignty or human rights are given extensive exposure in constructivist scholarship, there has
been little regard to actual mechanisms and procedures linking the idea of legitimate statehood to
norms and institutions belonging to the realm of international law. Instead, the focus on norms and
common identity construction led constructivist analysts to develop a neo-Kantian kind of
utopianism.141 In this regard, their interventions proved similar to those entertained by liberal
institutionalist or idealist IR scholarship, praising increased legalization and institutionalization
while blocking a view that would reveal the dysfunctional aspects of norm development and
implementation. In contrast, poststructuralists analyze and criticize underlying structures and
concepts such as sovereignty and statehood, and intentionally blur the distinction between domestic
and international politics. In their work, law becomes a means and never an end in and of itself.
And yet, while the deconstruction of taken-for-granted categories is a valuable undertaking,
poststructuralist approaches in IR have been either reluctant or simply unable to develop an
alternative framework to understand international law in its relation to international politics. Thus,
it is apt to suggest that they did not radically diverge from the IR convention of neglecting
international law. Indeed, despite theoretical and methodological differences, most IR approaches
to international law regard it essentially as a constraint on state behavior. Law is treated as a
construct that defines legitimate forms of violence. Meanwhile, this perspective totally
misconceives the role international law plays in both the making and sustaining of state identities
and state legitimacy. It also perpetuates the dichotomy of domestic and international domains
identified by poststructuralist analysis. Though plenty of work is done in IR on the legitimacy of
sovereign states and their use of force leading to systemic political violence, institutionalized forms
of exercise of power via international regulatory regimes are rarely included in this matrix, nor is
the international legal system and its workings. If attention could be shifted, from the classical
problems concerning the legitimacy of the sovereign state and its relations with other states and
international actors to the intersection between domestic and inter/supra-national politics, the
question of the relationship between law, legitimacy and normative consensus building would gain
traction.
Returning to the canon of IR theory, an interesting figure is worthy of note, as one of the
most vocal critics of the modern system of law, domestic or otherwise. This is Carl Schmitt. Schmitt
criticizes international law’s regulatory character, due to his fear that it undermines the political
nature of international relations. This view suggests that law does not work merely through
sanctioning, but also through the normalization and neutralization of contention in an existing
political order. If so, law is to be seen as a product of social practices and political relations, rather
than an external and calcified imposition based on the threat of force. Furthermore, what
distinguishes law from other discourses is that it provides the basis for social organization and
political order across the whole spectrum of modern societies, liberal or otherwise.145 Meanwhile,
in order to fulfill its functions, law must be perceived as distinct from the social order it is embedded
in and the conflicts it is meant to regulate. It is also posited as different from traditions and habits.
The result is the positing of a theory concerning the selfreferential nature of law and its distance
from abstract morality. This definition of law has been taken apart, not only by international
relations scholars but within the domain of legal scholarship itself, as well. Scholarship associated
with the critical legal studies movement is exemplary in this regard. Indeed, the links established
in the realm of domestic/municipal law between power, law, and sovereignty are also present in the
context of international law. Furthermore, while law is generally understood to limit as well as
legitimize the use of force, the international legal system relies heavily on another function of law:
its ability to define targets and regions for legitimate political action that performs a regulative
function. In other words, the authorization of acts that lead to the regulation of political actors (both
state and non-state) is an equally important aspect of international law. In this sense, public
international law bears quite a few similarities to domestic administrative law. Still, the
international legal system seems to critically depend on the maintenance of domestic sovereignty,
as this guarantees the internal consolidation of power. As a result, international law first and
foremost regulates the division of the world into sovereign territorial units, as well as dividing
oceans, airspace, and natural resources, and added to this list are law’s direct and indirect
involvements in the management of the world economy.
In other words, international law has unique functions that cannot be discussed solely in the
language of municipal/domestic law, but cannot be totally separated from it, either. No matter how
contested the validity and power of international legal regimes may be, international law
symbolizes the institutionalization of mores, norms, and practices at a scope larger than the domain
of the state itself. The effectiveness of a legal system in an international context cannot be measured
only or primarily in terms of its enforcement capacity. Rather, the whole arsenal of means it deploys
for deterring violations of its rules, as well as unique techniques in developing and legitimizing
these rules, must be taken into consideration. Contemporary international law requires the
allocation of authority within a complex system of legal prescriptions. As international law has
extended to areas as diverse as the management of global commons, migration, trade,
environmental regulation and human rights, the consequences of breach of international legal
obligations have become increasingly complex to determine. There are special secondary rules
within general international law concerning state responsibility in these areas. However, states do
not constitute self-contained international legal regimes. International legal regimes are larger than
the sum total of states they potentially bind, and possess different qualities. The next question in
this context is to determine whether the function of international law with regard to statehood is
merely “declaratory,” or, whether it is “constitutive.” If it is the latter, obligation would be the
determinant of the legal character of international law. If the former, force would win the day. As
IR scholar Louis Henkin (1979) pointed out many years ago, even in domestic societies individuals
obey law out of fear of extra-legal consequences. In so many words, punitive mechanisms are not
always necessary. Legality is to be defined as an ongoing process that involves institutions and
practices as well as rules and enforcement mechanisms. Indeed, as already mentioned, particular
criteria are adopted, such as those proposed by the contributors of the influential special issue of
International Organization (2000) regarding how to define international legal institutions, which
include precision and delegation as crucial dimensions of legal regimes. Still, such criteria do not
automatically give a definitive normative value to international law, nor do they guarantee that
increasing international legalization would lead to the betterment of the world, whichever way
progress may be defined. This is yet another point of critical exchange between international law
and international relations scholarship. Adherents of critical international legal studies have already
pointed out how law can and does reinforce existing social structures and tendencies towards
violence and injustice through its capacity for reification, mystification and legitimation. At this
point, the necessity of establishing bridges between domestic and international understandings of
law becomes all the more apparent. To be more specific, international law establishes criteria for
membership for both state and non-state actors in international legal systems, as well as identifying
the rights and duties of involved actors. As such, it legitimizes and reproduces certain kinds of
relationships while forbidding or chastising others. International law is thus engaged in the creation,
legitimation and regulation of relations in both the domestic and non-domestic spheres. What has
so far been emphasized excessively is its inter-state dimensions. This is despite the fact that, through
its institutions and practices, international law has a direct involvement not just in the regulation of
state behavior but also in the very production of the definition and norms of statehood. International
law does not only endorse and stabilize the parameters within which actors engage with each other.
It also establishes the criteria by which to distinguish legitimate actors, and how they are to be
constituted within the system at large.
Here, the language of constraints adds an interesting dimension to the debate on the
relationship between international law and statehood. The liberal institutionalist school of
international relations theory generally equates international law with external constraints—that is,
norms and norm enforcement mechanisms to control behaviour of actors in terms of specific rights
and obligations. The choice between compliance and non-compliance, especially in the absence of
an enforcing authority, is a problem, but only to a limited degree, as this argument posits that states
and other international actors cannot exist in isolation from each other and therefore they ought to
comply. Meanwhile, the identity of an actor is substantively affected by its involvement in the
making and acceptance of international law as well as the specific forms of its appropriation in the
domestic sphere. To this end, in their work on the power of international organizations, Michael
Barnett and Martha Finnemore (2014) claimed that international legal structures are actually
essential in the creation of the very actors they implicate. For instance, international bureaucracies
specify responsibilities, set and diffuse norms, and classify and organize information and
knowledge. Similarly, international treaties, conventions, and organizations invent, standardize or
redefine legal, social and political categories. International law, in this context, is not simply an
abstract code but is constitutive of the political, social and economic structures that it seemingly
relies on. In other words, the legality of international law does not spring from its centralization or
from developing mechanisms for its authoritative enforcement. Force-based formulation of law
fails to account for how international law works. It is the inter-relational and constitutive
characteristics of international law that provide it widespread legitimacy with hegemonic
undercurrents. In summary, law in general is not an autonomous field of norms and coded practice.
In the same manner, international law specifically cannot be understood without particular
moralities and normative frames of reference dispensed by the actors upon which it exerts influence.
Even the positivists’ requirement to base legal obligation in consent or custom instead of normative
notions of justice does not alleviate this condition of interdependency. According to Martti
Koskenniemi (1990), law must demonstrate its distance from politics in order to be able to set
normative standards applying to all subjects regardless of their political preferences, and, in equal
measure, in order to avoid being degraded into an instrument of apology for the state’s interests.
These two requirements are ultimately self-contradictory, a problem which is reproduced at the
level of international law. Even the celebrated notions of collaboration or compliance in
international law depend on sufficient prior knowledge of the rules, with clear normative content
and significance. The disciplinary practices of international organizations, institutions, and regimes
play a crucial role in this process of learning, choosing and interpreting. They help international
law present norms as derived from and justified by necessity or consent, often both. As such,
international law obtains its meaning in relation to the practice of interpretation performed by the
very actors subjected to it, who are not limited to the state. Dividing this process of interaction into
external and internal, inside and outside, and then treating each part as autonomous makes no sense
if one is to understand how international law operates.
IV. INTERNATIONAL LAW VERSUS THE STATE? THE TEST CASE OF UNIVERSAL JURISDICTION
Thus far, I have discussed what constitutes international law within an interdisciplinary
framework. Here, I will take this debate one step further and unpack the dominant conceptualization
of international law further in the specific context of universal jurisdiction. This is in order to
identify the pattern that underlies the application of the principle at a global scale and to assess the
state of scholarship and critical thinking regarding its operationalization. As already stated,
international law is traditionally defined as the body of law that regulates the activities of entities
accepted as possessing “international personality.” Historically, such entities were defined as states,
whether nation-states or imperial states. Contemporary renditions of international law include the
affairs of international organizations (both IGOs and NGOs) and multi- and transnational
corporations, as well as individuals engaged in certain kinds of acts considered the business of
international law. International organizations established by treaties, for instance, are deemed
subjects of international law and thus capable of entering into agreements among themselves and
with states. Despite this well-constructed façade of formal legal principles, scholars outside the
legal domain tend to argue that international law has been and remains a singularly normative
regime. In the same spirit, the question of whether international law is harnessed to the achievement
of common values, or instead serves the function of protecting the status quo that keeps powerful
states powerful, if not rendering them more powerful, also remains open to lively debate, as
witnessed in the case of TWAIL scholarship. Although traditional legal scholarship purports that
the necessity of international law arises from the need to ensure a process that can regulate
competing demands and establish a framework for predictable and agreeable behavior by
recognized political entities, non-legal, Marxist, post-colonial or legal pluralist renditions of
international law clearly argue that all states are not equal and they do not benefit equally from
international law. Finally, while international law sets the criteria for a legal system that has a say
over, and beyond, the states and other legal entities it encompasses, it is also constricted by the very
entities—in particular the state—which it claims to have a mandate upon. This sub-section takes
up precisely this last point:
the endemic difficulty in international law vis-à-vis how to address the state in the context of
universal jurisdiction.
The following pages are thus devoted to analysis of the relationship between the state and
(international) law, as it has been canvassed by legal scholarship on the issue of universal
jurisdiction. Although the general call of international law is not limited to issues related to the
state, the state occupies a rather central position in both legal and practical aspects of this domain
of jurisprudence. To start with, as the existence of a state presupposes control of and jurisdiction
over a well-defined (i.e. bordered) territory, international law naturally deals with the acquisition
of territory, state immunity, and the legal responsibilities of states in their conduct with each other.
It is also concerned, by derivation, with the treatment of individuals within state boundaries, based
on the assumption that there must be a comprehensive regime dealing with group rights, treatment
of aliens, rights of refugees and migrants, and human rights, as well as international crimes. Also
included within its mandate are the maintenance of international peace and security, arms control,
settlement of disputes and regulation of the use of force in inter-state relations. In the event of the
outbreak of a war, there are historically referenced principles of international law concerning how
to govern the conduct of hostilities and the treatment of prisoners. Finally, international law is
utilized in attempts to govern issues relating to the global environment, the global commons such
as international waters, global communications, global labor migrations, and of course, world trade.
Consequently, a large canopy of supranational organizations and international bodies has been
created to provide mechanisms through which disputes between states and other international
entities can be resolved through arbitration and mediation. This wide spectrum of dictates provided
by and discharged under the rubric of international law certainly seems to provide enough
justification for the assumption of a selfsufficient and well-established legal system. Still, when a
country is recognized as a de jure state with a sovereign right to exist, it also has the right to refuse
to engage or participate in any of the activities of supranational bodies, or to declare the decisions
made by a conglomeration of states to be non- or selectively binding.
In other words, so far as international law promotes treaty obligations, or refers to customary
law understanding of the historically defined obligations of states, one could speak of a minimum
degree of normative unity. Meanwhile, no matter how powerful international courts, regulatory
bodies, and other non-state organs may have become, the extent to which their rulings or judgments
can be enforced is limited by and dependent upon the cooperation of concerned states and other
international actors, and thus pertains to the domain of international politics. The relationship
between national sovereignty and international legality has direct implications for the debate on
international jurisprudence, as well. Since they do not possess independent enforcement
mechanisms, other than in cases related to humanitarian intervention and select cases of
humanitarian law, international organizations associated with practices of international public and
criminal law, as well as international courts and tribunals, have to co-ordinate their activities with
national courts. As these two sets of bodies by and large do not have concurrent jurisdiction, their
relationship is primarily based on the principle of complementarity. If the jurisdiction of these two
sets of bodies is regarded as concurrent, however, or if international law is to supersede nation-
state-based law, problems arise. Although the concept of universal jurisdiction is inherently
important to the operations the ICC as an international body with a global mandate, its power to
enforce its decisions and judgments is almost entirely dependent upon the endorsement of the very
actors whose behaviour it seeks to affect. Of course, as witnessed in the cases of European Union
or the African Union, groups of states can create politico-legal bodies at the regional level with
overlapping provisions for juridical authority, thus challenging the model that prioritizes domestic
or nation-state based jurisprudence. In such cases the aim is the regulation and harmonization of
judicial relations amongst member states under the rubric of transnational institutions with declared
legislative and, though limited, judicial powers. For instance, within the domain of European
Union, the European Court of Justice assumes jurisdiction as the ultimate appeal court for member
states’ understanding and implementation of European law. Its authority can only be denied if a
member state withdraws from the European Union itself. However, to assume that international law
in general operates based upon similar principles is naïve at best, and illusionist at worst. Although
there may be exceptions, most states enter into legal commitments to other states or other
international entities with reference to historical relations, and often as a result of subtle or overt
coercion, rather than out of adherence to a body of law claimed to be of higher normative status
than their own both in its essence and in its mandate. Thus it is absolutely necessary to state that
international law cannot exist in isolation from the domain of international politics and history.
What is curious is how this could have escaped the vision of international law scholars for almost
a century. The presumptions surrounding the workings of the principle of universal jurisdiction are
a clear case in point in this regard.
CONCLUSION
Do international law and international politics scholarship cohabit the same or at least
cognate conceptual spaces when it comes to the discussion on international law, and in particular,
the state? How does each articulate the reality of an “international system” commonly identified as
the bedrock for universal jurisdiction? In this chapter, I made the case that, although it makes little
sense to study these two fields of inquiry independently, an integrated theory of international law
and international relations is yet to come into full existence. It is true that starting with the efforts
of Myres McDougal and Harold Lasswell, the progenitors of the New Haven School’s studies in
international law, an important niche was carved out to this end. Their use of theories of national
politics and domestic law to rethink the nature and definition of international law produced some
noteworthy results. Here one should also cite the international Legal Process School pioneered by
the work of Abram Chayes, Antonia Handler Chayes and Louis Henkin. These scholars keenly
sought to explore the impact of international legal rules on international political processes. Their
task was to determine the extent to which law influences and shapes how societies behave. Both of
these approaches were developed in tandem with ongoing work in the domain of international
relations at the time. Back in the 1970s, the young discipline of international relations disdained
what the dominant group of realist scholars saw as the moralism of international law. It is in this
context that select international legal scholars attempted to offer a theoretically articulate response
concerning the nature of international law—a response that set the tone of the debate presented in
this chapter.
As already discussed, during the 1990s a third approach emerged among legal scholars who
claimed to study law in its full context. Rather than canvassing political dimensions of select
international legal problems, this new body of scholarship attempted to re-think international law
vis-à-vis the entire system of international relations. Members of this school such as Anne-Marie
Slaughter strongly believe that international relations theories have much to offer in terms of
conceptualizing the basic architecture of “the international legal system.” They thus encouraged a
significant degree of congruence between the framing of international law and the models used by
international relations theorists. In this new context, we saw the emergence of a shared analytical
framework between international lawyers and legal scholars, and political scientists and
international relations theorists. Liberalism and realism entertain fundamentally different
assumptions about international politics, such as those related to the identity of primary actors, the
relationship of non-state actors to state institutions, and determinants of inter-state and transnational
relations. Still, the pages above have demonstrated that, overall, the most prominent aspect of IR
theory pertaining to international law, regardless of the particular leanings of the authors, has been
its emphasis on different types of states, based on domestic political structures and ideological
dispositions. Ultimately, the framework of classical international law scholarship is predominantly
based on the premise of sovereign equality rather than differences amongst states.
Is it possible to re-imagine international law by looking at it through the critical lens of IR
theory? This is exactly what some of the younger generation of international legal scholars have
been aspiring to do. Gerry Simpson’s work constitutes a remarkable example of such an endeavor.
Whether this kind of scholarship can achieve a re-charting of the field of international law remains
to be seen. What is rather obvious, however, is that the debate on universal jurisdiction reveals the
underbelly of traditional international law scholarship, which is characterized by its overreliance
on the state as a unit of analysis, combined with a methodological avoidance of a theory of the state.
About a century ago, Lassa Oppenheim argued that (legal) scholarship can and should separate the
tasks of presenting an analytic report of legal practice and engaging in a critique of the deficiencies
of existing rules or institutions. Indeed, many of the challenges for IL scholarship have proved also
to be enduring ones—the issue of state sovereignty constituting a paramount example. The current
tendency to overload international law with expectations results at least in part from shunting
transnational norms, private standards and national regulations under the rubric of the state, without
paying due attention to their interconnections as well as separate logics. A systematic study of the
relations between different normative and prescriptive structures in international law also remains
absent, barring debates on transnational law. In this larger context, dealing with the state in a
historical and conceptual manner rather than in a calcified way is essential for understanding the
workings of international law.
This chapter is written to provide a critical examination of key themes in contemporary legal
studies on international law in relation to the work done by international relations scholars, with a
specific focus on universal jurisdiction. Its central question was how the conceptualization of the
state shapes the context as well as the contents of studies of international law across disciplines.
The issue here is not whether legal scholarship on international law lacks awareness of debates on
the state outside of its field. At least in the Anglo-American tradition, theorists of international law
openly attack legal positivism and its heavy reliance on state-made law from within the discipline.
Canonical volumes in this regard include the deconstructivist understanding of international law
exemplified by the work of D. Kennedy in his International Legal Structures; Martti Koskenniemi's
From Apology to Utopia, which criticizes the liberal political discourse within which traditional
studies of law is situated; and the work of Frederick Kratochwil on norms. These texts have made
it clear that the assumption of an Archimedean point from which one can impartially judge the
common good for all states has long been null and void. Nor can inter-state consent as the
foundational process of customary law be taken for granted.
In this case, could we conclude that despite the lack of a common lexicon between IL and
IR scholarship on the issue of international law, this field of inquiry has moved well beyond the
excessive normative and isolationist dispensation that once characterized it? For students of
international law of all persuasions, it has now become basic knowledge that normative principles
in international law, as elsewhere, receive definitive meanings only in the context of social and
political practices. This does not mean that legal scholarship has totally and unconditionally given
up its “transcendental” aspirations for the realization of an international legal system and the
practice of universal jurisdiction in select areas. Still, there is growing awareness of conflicting
traditions and political trajectories, which leads to questioning of the very principles upon which
the edifice of international law is built. Similarly, it seems that current scholarship from within the
field has finally managed to trivialize the old and tired controversy of natural law versus legal
positivism, and to an extent also the jargon of soft versus hard law. Still, we continue to struggle
with the difficulty of finding an objective legal standard to define justice in the context of
international criminal law. Questions such as how binding normative decisions are made for the
entire community of international actors on the basis of presumed or partial consent continue to
haunt the field. Similarly, the very idea of a self-imposed obligation is in contradiction with the
implication that pacta sunt servanda or jus cogens were originally defined in relation to one actor’s
interaction with others. As a result, the question of whether, when and how international law is to
be considered binding is perpetually deferred, along with the Janusfaced, absent but always present
referent of the state.
Consequently, in the study of international law and, in particular, of universal jurisdiction,
we witness a decisive conflation of the subject and the object of analysis, the state. In some circles,
the possibility of the emergence of an external normative order representing an autonomous system
of legality may still be all the. As a counter-measure, I have argued here that the current grammar
of legal theory pertaining to international law must address the state from a critical distance, as
already suggested by IR scholarship. These two distinct disciplines have long been striving in
parallel, although for different reasons, to show how international legal institutions emerge, change,
work and fail. As demonstrated in this chapter, varied efforts, particularly since the 1980s, have
brought IR and IL scholars together through collaborations in scholarship, the trading of ideas, and
the formation of new journals open to crossing the oncesolid divide. Yet even when studying the
same phenomenon, the state for example, these two fields often seem unaware of, if not indifferent
to, the insights available on the other side of the disciplinary divide. As I have proposed here, as far
as the state is concerned the academic analysis of universal jurisdiction constitutes a subset of
scholarship on international law, and is subsumed under the general premises of how international
law is understood to be working. Although comparatively little attention has been paid to the
question of universal jurisdiction in opinions and declarations on international law by IL and IR
scholarship, conclusions as to the “lawfulness” of universal jurisdiction bring us back to critical
issue of the state. Conflation of states’ jurisdiction to prescribe their criminal law and the manner
of that law’s enforcement renders the permissibility of the enforcement of universal jurisdiction
rather suspect. State practices in favour of universal jurisdiction over crimes that fall under general
international law cannot be explained by the state itself. Neither can they be understood through a
state-centric conception of international law. A systemic approach is required, one that takes into
account all the nuances addressed in the previous chapter that underline the transnational
characteristics of international law.
Chapter III: The Long Road from State Sovereignty to Jus Cogens and Back Again: Travels in
the Global South
INTRODUCTION
This chapter is a situated critique of interpretations of the phenomenon of fragmentation as
it is manifested in international law. The issues addressed here specifically deal with collisions
between international law and state sovereignty, and incompatibilities between the various
international law regimes in terms of their effects in the Global South. This debate has direct
repercussions concerning the merits and applicability of crimes against humanity legislation under
the purview of universal jurisdiction principle. The expansion and diversification of international
law has been possible partly through the rise of specialized regimes that have no clear relationship
to each other, are not subject to coordination, and are not based on anything other than power-
related hierarchical relations. In this sense, assuming harmony and internal unity to be the
foundational characteristic of international criminal law is a prescriptive suggestion more than a
historical reality. Furthermore, conflicts between these regimes present problems of overlap,
uncertainty, and divergence in public international law. Similarly, specialized bodies of
international law come into conflict over what international law means, and how to define
compliance. They also often disagree on the meaning of particular treaties or rules in international
law, the relationship between these, and who should have the authority or jurisdiction to interpret
them with certainty. These disagreements lead to increasingly divergent decisions concerning
international law obligations. Last but not the least, such conflicts have their origins in the long
history of the post-imperial and post-colonial roots of international law and, as such, traditional
rules of resolution have proven to be most unsatisfactory. While some of the self-contained and
regional regimes claim exceptionalism or primacy over other rules of international law, we also
have international legal bodies such as the ICC that claim to be the harbinger of truth in
adjudication. In view of these problems, this chapter seeks to highlight select kinds of interaction
between these multiple regimes of accountability that provide actual political, legal, and historical
content to the long-debated fragmentation of international law. The chapter concludes with the
suggestion that the plurality of regulatory institutions, normative values, and adjudication fora in
international law is in fact a very necessary component of the existing system of accountability.
Seeking unity and coherence of international law without addressing the violent histories it
represents and through the application of traditional legal techniques to harmonize adjudication is
a futile exercise at its best, and a very antagonistic one at its worst.
As already discussed in the opening chapter of this work, the fragmentation of international
law is a substantial enough issue to have merited even an official recognition. To this end, back in
2000, the International Law Commission decided to add to its program of work the topic “Risks
ensuing from the fragmentation of international law.” The proliferation of international criminal
courts and tribunals is part of this much larger debate on fragmentation. In this context, theories of
fragmentation and constitutionalization have traditionally been presented as antagonistic accounts
of the global legal order. While fragmentation theorists posit a nonhierarchical set of relations
between general and specialized areas of international law, adherents of constitutionalization theory
depict a grand transformation from horizontal and consent-based roots of law towards a hierarchal
structure built upon commonly shared fundamental principles. The proliferation of international
courts and tribunals has been recognized as a factor that muddies the perfect picture of
constitutionalization, supporting the fragmentation thesis in international law. Indeed, the
development of a series of specialist or regional regimes of legal accountability is often perceived
as posing a risk to the coherence and presumed homogeneity of international law. On the reverse
side of the coin, institutional fragmentation is also seen as a key factor that has strengthened the
role of specialized regimes including the WTO, EU, regional human rights and environmental
regulation bodies, and so on. In such a varied landscape of legal accountability and regulation, the
question of what to do with normative conflicts between co-existing regimes is no longer an abstract
one. The Chairman of the ILC Study Group on Fragmentation of International Law, Martti
Koskenniemi, was thus almost forced to emphasize the maxim of lex specialis in his report in order
to address the relation between these seemingly self-contained regimes and general international
law. Meanwhile, lex specialis suffers from a marked degree of conceptual vagueness. The
fragmentation of international law made new types of conflicts visible, namely those between
different and antagonistic normative orders, and heightened some of the old ones concerning
historical injustices. As such, lex specialis may not be enough to address the current challenges
faced by international law. As argued in the opening chapter of this work, a transnational approach
may be able to soothe at least some of these anxieties. Combined with the double forces of reflexive
legal pluralism on the one hand, and TWAIL scholarship on the other, it may indeed be possible to
chart a different trajectory for understanding the present and future of international law in its heavily
fragmented modus operandi.
Interestingly, in the area of international criminal law (ICL), much of the recent worry over
fragmentation originated from the collision between the ICJ and the ICTY (International Criminal
Court for the former Yugoslavia) over the “overall control-test” in the Tadić case, where the ICTY
departed from settled ICJ law on the attribution of liability and the qualification of the nature of an
armed conflict, employing instead a standard of “effective control.”187 Twenty years after the
establishment of the ICTY, the fragmentation/pluralism debate proliferated to yet new heights. With
a well-developed body of ad hoc tribunal case law, an emerging body of case law at the ICC, hybrid
systems like the Cambodia Tribunal, and increasing number of domestic prosecutions under the
dictate of universal jurisdiction, the co-existence of fragmentation and pluralism has become a
serious matter for legal realists, legal positivists, and monists alike. While there are still those who
express concern over heterogeneity in ICL, many branches of recent scholarship acknowledge
international criminal law’s pluralistic nature and, instead of striving for unity, call for ways of
addressing this plurality. All the same, ICL continues to hover between cosmopolitan ethos and
technical specialization while effectively attempting to displace all other possible routes to attaining
justice. This is despite the fact that questions of illegitimacy, discrimination, and asymmetry in its
application, as well as the conflicts lying at the roots of its formation, cannot be wished away. As
argued by the latest generation of TWAIL scholars, notwithstanding ICL’s historically troubling
past and violent track record, international criminal justice is still embraced, at least in some parts
of the Global South, as a potentially emancipatory project. And yet, the main impediment to the
fulfillment of such a desire remains ICL’s continuing operational selectivity and geopolitical bias.
Is ICL indeed capable of overcoming deficiencies in national legal systems? When a state is
incapable or unwilling to punish, could there be a reliable and impartial agent such as an
international or hybrid court to do the job? Is ICL capable of offering pragmatic solutions to the
partiality and/or ineffectiveness of national legal systems sans politics?
In this chapter, I answer these questions firmly in the negative. In particular, I argue that
ICL in and of itself cannot provide a panacea for the partiality, lack of accountability, and/or
ineffectiveness of national legal systems concerning mass political crimes. This leads us to yet
another set of questions. If ICL and the values it promotes are provided by international entities,
what sort of legitimacy could these legal organs claim by virtue of the letter of the law they purport
to adhere to? In my view, this is another embodiment of the consitutionalization argument par
excellence. For the protagonists of ICL as a universalist enterprise, this is called “robust
internationalism.”As such, the international character of the courts and tribunals tasked with
applying ICL is seen as sufficient to successfully fulfill their mission. This argument is implicitly
recognized by the institutional founders of ICL, and is also reflected in its key doctrines.
Meanwhile, neither of the principal legal responses to the current multiplicity of legal regimes is
adequate. Pluralism divides too much and isolates unnecessarily and perhaps dangerously, while
constitutionalism unites even where there are no grounds for the presumption of universality in
international law. The emergence of multiple regimes of accountability perhaps resembles the rise
of nation-states at the dusk of the European Empires. As nations were imagined into being, so are
legal regimes. Reducing international law to a mechanism for advancing the functional objectives
of a universal mega-state, or to an instrument for powerful states’ policy implementations at a global
scale, is far too simplistic. Debates over pluralism and fragmentation suggest alternative accounts
of how international law works. Regional legal bodies, quasi-legal regimes, sub-national rights
struggles, hybrid criminal tribunals, restorative justice projects, societal reconciliation mechanisms,
global social and political movements for substantive legal reforms are not to be considered as a
complement to international law. They are part and parcel of it.
I. LEGITIMACY OF INTERNATIONAL LAW : LINGERING QUESTIONS
The regime of international law is illegitimate.
Makau Mutua
In this section, I will focus on perceptions of the legitimacy of international law in the
Global South. This is an essential discussion for understanding the limits of universal jurisdiction
in terms of its global application. In this specific context, as was the case with the overall critique
of international law, I will turn my attention to TWAIL scholarship. Almost two decades ago, James
Thuo Gathii published a critical overview of the Special Symposium Issue of the Harvard
International Law Journal titled “Alternative and Critical: The Contribution of Research and
Scholarship on Developing Countries to International Legal Theory.” There, he stated that what
began as a lecture series during the 1990s at the Harvard School of Law has grown into a noteworthy
enterprise worthy of international law scholars’ attention. This special issue on “international law
and the developing world” was planned as a flagship publication to alert the world of legal
scholarship to a renewal in interest, research, and publication in the area of Third World
contributions to the field. Gathii noted with pride that the articles included in the issue explored
important and novel ways of understanding the most urgent themes in international law affecting
“developing countries” over the last several decades, and the challenges these societies face in the
new millennium. The articles listed here were penned by a broad range of scholars with varied
experiences, perspectives, and national backgrounds, though with a common focus on the
interaction between international law and the Global South. They fit into roughly three distinct
theoretical frameworks in terms of their contributions to international legal theory. The first set of
articles provided an explanation of international law as culturally constitutive and historically
contingent. Obiora Okafor’s work in the collection, for instance, underlined the frailty of the nation-
state model in Africa, as a legacy of the impositions of Eurocentric notions of legitimacy on
culturally heterogeneous landscapes, which in turn led sub-state groups to view it as illegitimate.
Similarly, Balakrishnan Rajagopal’s piece engaged in an alternative reading of international legal
history, showing how Third World resistance was an important factor, often totally overlooked or
underestimated in the expansion, consolidation, and renewal of international institutions. These
pieces signaled the coming trend of critical historical analysis of international law as seen,
perceived, and experienced in the Global South. For the purposes of this dissertation, this approach
constitutes the main pillar of the methodologies used to decipher perceptions and formulations of
international criminal law from within the Global South.
The other two theoretical frameworks celebrated in the aforementioned special issue are
also of great significance. The second called for international law to play a mediating role in
addressing some legal gaps in the global restructuring of capitalism, while the third one was built
on the premise that notions of international law, development policy, or even local customary
practices do not have predetermined outcomes. These are themes and departure points that have
been developed significantly over the last fifteen years, particularly under the aegis of legal
pluralism and transnational law. Overall, it would be accurate to suggest that TWAIL scholarship
achieved its initial goal, securing growing number of followers as a school of thought. It has been
able to drive home the point that international law’s claims to universality must be replaced with
an acceptance of legal and normative pluralism, and that international law squarely bears the
imprint of the hegemonic architecture of North-South relations starting with European imperialism,
colonialism, and now neo-colonialisms. It is also true that new generations of African, Middle
Eastern and Indian international law scholars have produced increasingly subtle readings of how
international law functions across the North-South divide. Within this first generation of
international law scholars from the Global South, thinkers like Elias Olawale Taslim and Sinha
Prakash had already argued that Africa in particular, and the Global South in general, had
participated in creating the civilizational pluralism from which international law was created.
Scholars like U.O. Omozurike, S.B.O. Gutto and Mohammed Bedjaoui, however, insisted that
despite all its potential for plurality, international law continues to reflect the structural and
economic inequalities produced by former colonial rule.
By the time the third generation of scholars joined this conversation, new debates were
already unfolding within TWAIL itself. The work of Antony Anghie and Siba Grovogui, for
instance, traces the origins of international law and identifies distinctions made by leading jurists
such as Vitoria between Europeans and non-Europeans. Their analysis clearly signal continued
wariness concerning the legacy of contemporary international law doctrines and institutions.
Indeed, overall TWAIL now provides an insistent counterweight to the overwhelming dominance
of American and European legal scholarship, offering alternatives to traditional paradigms of
understanding and producing knowledge about legitimacy in international law. Speaking from a
variety of views on the nature and implications of the hegemonic Euro-American framing of
international law represented by liberal internationalism, institutionalism, constitutionalism, and of
course by neo-conservative realism in international law scholarship, TWAIL scholars have been
asking very difficult questions, not only about the legitimacy of law but also about the origins of
the existing state system.203 The critical issue here is not so much producing accounts of
countervailing or “more authentic” notions of legitimacy, but opening up a space for scholarly and
political projects that are capable of formulating change while acknowledging genealogies of
injustice. In the following pages, working from within the TWAIL perspective, I will refute some
of the key arguments commonly used in defense of the neutrality of international law, though to a
somewhat unusual end: to foreground jus cogens norms in a more palatable context for the societies
in the Global South. These norms form the foundations of universal jurisdiction and, as such, they
are essential in understanding the unfolding trends in the adjudication of crimes against humanity
at a global scale.
In the case of jus cogens norms, my opinion is that even inclusive legal positivism and new
forms of legal pluralism do not succeed in estranging themselves adequately from the traditional,
apoliticized conception of international law. It is true that legal positivism, unlike
203 Though by no means an exhaustive list, the selections below all raise the same question of how to formulate change
once we identify where things went wrong: See D. Kennedy, “The disciplines of international law and policy” (1999)
Leiden Journal of International Law, 12(01), 9-133; Okafor, O. C., “Critical Third World approaches to international
law (TWAIL): theory, methodology, or both?” (2008) International Community Law Review, 10(4), 371-378; Fidler,
D. P., “Revolt against or from within the West-TWAIL, the Developing World, and the Future Direction of International
Law” (2003) Chinese J. Int'l L., 2, 29; Mutua, M., & Anghie, A., “What is TWAIL?” (2000) In Proceedings of the
Annual Meeting (American Society of International Law at 31-40; Ngugi, J., “Making new wine for old wineskins: can
the reform of international law emancipate the Third World in the age of globalization” (2002) UC Davis J. Int'l L. &
Pol'y, 8, 73; Fidler, David, ”Revolt against or from within the WestTWAIL, the Developing World, and the Future
Direction of International Law” Chinese J. Int'l L., 2, 29; Okafor, O.C., “Newness, imperialism, and international legal
reform in our time: a TWAIL perspective” (2005) Osgoode Hall LJ, 43, 171; Okafor, O. C., “After Martyrdom:
International Law, Sub-State Groups, and the Construction of Legitimate Statehood in Africa” (2000) 41 Harvard
International Law Journal 503.
Bhupinder S.
Chimni, "International institutions today: an imperial global state in the making” (2004) 15 European
Journal of International Law 1.
other views on the nature of law and its command upon societies, could give us a sensible
explanation of law useful for a theory of historical change; but it does so only if we turn it upside
down. I contend that if canonized debates about the legitimacy of international law were to shed
their state-centric approach along with their Eurocentricity, and if the field could be
recontextualized in terms of histories of capitalism and the legacy of North–South relations, a much
richer discourse on international law would emerge. Prior to the emergence of TWAIL as a
formidable school of thought, the conventional view tended to characterize “Third World legal
discourses on international law” as ad hoc and reactive rather than as a distinctive mode of analysis.
Given that we have now reached a juncture where, for a growing number of scholars, thinkers, and
legal activists, TWAIL offers both theories of and methodologies for analysing international law
and its institutions, we must reframe the questions of both legitimacy and universality in
international law. In the following pages, I will make a concerted attempt in that direction.
II. THE QUESTION OF THE STATE IN INTERNATIONAL LAW AS SEEN FROM THE GLOBAL SOUTH:
A CHANCE TO START ANEW?
Post-Cold War rejuvenation of enthusiasm about international law has been attributed in
part to the way that “critical legal scholarship,” in particular the TWAIL work, has reshaped the
discipline and provided it with new sensibilities and perspectives, increasing its appeal to larger
audiences. Still, the increasingly textured, adversarial, and divisive debate among international
relations scholars about how to embrace the study of international law is a clear indication of how
Herculean such an attempt is. In the previous chapter, I suggested that one way that international
law and international relations scholarship could converge, in more than tangential ways, is to re-
conceptualize the State. Indeed, I believe that when the state is problematized in each of these
domains, rather than being treated as a political given or a historical fait accompli, a real chance for
dialogue may emerge.
In this section, I will first identify the historical importance of the state in the emergence of
international law from the perspective of the Global South. I will then examine select examples of
the classical mode of thinking in legal scholarship on international law in terms of the perception
of its building blocs and key conceptual tools for understanding how law works in this specific
instance. I will conclude the section with a brief discussion of the treatment of the state in particular,
and power in general, in international law scholarship, and underline the possibility of a different
take on this particular issue for the future studies of international law.
There are a series of fundamental conflicts over both the meaning and workings of
international law as it relates to the history of the nation-state since the Treaty of Westphalia (1648).
Well into the mid-1800s, the classic form of the state was a multi-ethnic empire. The populations
of such states belonged to many ethno-religious groups and spoke different languages. These
empires were often dominated by particular ethno-religious groups, and, the language of these
groups were declared to be the language of public administration. The identity and the composition
of such ruling groups changed over time, however. Internal state structures also exhibited a
considerable degree of variation despite the overarching imperial format. Finally, some of the
smaller European states were not ethnically or religiously diverse, and yet possessed considerable
territorial sovereignty due to their “successful” imperial and colonial expansion strategies. In
examining these “smaller” states prior to the advent of the nation-state, one must keep in mind
either their religio-political significance, as in the case of the Vatican, or their overseas connections,
as in the case the Netherlands, when judging the political power they possessed and the bargaining
power they could levy in their dealings with other states.210
It was against the background of this general imperial mold that, from the late eighteenth
century onwards, and for reasons far too complex to be adequately covered here, the ideal of the
nation-state took root. The origins of the nation-state are highly contested. Canonical figures in the
field such as Benedict Anderson have even suggested that nationalism was actually a product of
what happened in the overseas colonies. It was “over there” that the spark was set off, giving the
idea peoples ruled by imperial powers that “another world was possible.” For many other scholars,
however, it is from within Europe that we should read the histories of both the nationstate and
nationalism, initiated by the transformations of the absolutist state on the Continent. Across Europe,
some regions grew into nation-statehood through unification by trade and political integration,
while others were brought in by military force and invasions—for which the French are singularly
blamed. Meanwhile, despite their differences, scholars of nationalism representing separate schools
do agree on one issue: the so-called nation-state emerged at the end of a particularly brutal trajectory
of homogenization and organized violence during the eighteenth and nineteenth centuries.
Secondly, it was the political entity that sought to define a firm national identity in order to justify
its existence, internally and externally, and, not vice versa. This is not to suggest that nationalism
was purely myth and invention, or that it did not have historical roots. This observation does
indicate, however, that there was as much politics involved in the emergence of modern nations as
there was culture. Furthermore, it is also generally agreed that with the growth of not only the
concept but also the reality of a nation-state came the idea of societies-cum-nations to be controlled
by a centralized system of government with a complete say over the livelihood of its citizens. As
such, any dealings with entities outside of the “national jurisdiction” had to be regulated otherwise.
Here are the beginnings of international law as known today.
The question remains, however: what kind of international law? Until the beginning of the
20th century, relations between nation-states were almost exclusively dictated by treaties, which
are in essence legally unenforceable agreements obliging the concerned states to behave in a certain
way towards each other or another state, based on the threat of use of force. At the other end of the
spectrum were customary practices, mainly applicable in the field of warfare, such as jus in bello
and jus ad bellum. As the 20th century progressed, a number of extremely destructive armed
conflicts and unprecedented forms of organized violence, particularly WWI, WWII and the
Holocaust, starkly exposed the underbelly of this semi-voluntary/semi-militaristic system of
international law, at least as far as relations between states were concerned. After WWI, the model
of international law as it pertained to interstate relations was that the League of Nations, which
lasted only until the outbreak of WWII. In the aftermath of the two World Wars, in an attempt to
create a more entrenched and encompassing system of rules and laws to prevent similar future
conflicts, a new vehicle for the application of international law was found in the form of the United
Nations (UN), which came to encompass several international law-making bodies. So far, this
narrative follows a standardized and also, at least in the eyes of critical international studies
scholars, apoliticized history of public international law. Skeptical readings of this account are also
quick to point out that international law is a somewhat young, and in effect essentially Eurocentric,
creation, and to define it does not require going back to some assumed seventeenth-century fathers.
While legal scholarship in this area dictates that the idea of international law was extant before the
nation-state system came to dominate the political universe of statehood, other angles on the issue
make every conceivable effort to separate the worlds of Grotius, Vattel, and Kant from that of the
International Court of Justice and other legal bodies with an international mandate. For the purposes
of the present study, the question that persists among these categorically different takes on the
origins and meaning of international law is whether or not system-oriented developments in
international law have managed, at least in select areas, to take power away from states and
governments, and to cede it to international bodies with a clear mandate. In other words, regardless
of one’s position on its roots (intellectual as well as historical), has international law evolved to
such a point that it now exists separately from the mere consent of states or other relevant actors?
Or, as vehemently maintained by the current government of the United States of America, for
instance, is state sovereignty to be regarded as the only true principle of international law? At a
different but related plane of analysis, is it possible to discern a legislative and judicial process
endemic to international law that actually parallels such processes within domestic law? For any of
these questions to be attended to satisfactorily, the sources of international law need to be re-
examined. This is exactly what has been happening in both of the fields of expertise being studied
here: legal scholarship on the one hand, and international relations scholarship on the other.
Legal scholarship clearly posits that there are three recognized sources of international law:
international treaties, customary law, and general principles of law. Specifically, international
treaty law is comprised of obligations that states expressly and voluntarily accept between
themselves through treaties. Customary international law, on the other hand, is assumed to have
derived from the consistent practice of states accompanied by opinio juris, i.e. the conviction of
states that a legal obligations requires a consistent practice. Finally, the judgments of international
tribunals and courts, as well as legal scholarship, have traditionally been regarded as a source for
international law. Accordingly, the common narrative account of the emergence of the current
regime of international law suggests that attempts to codify customary international law assumed
decisive momentum after WWII with the formation of the International Law Commission (ILC).
The ILC was established by the General Assembly of the United Nations in 1947, with the specific
purpose of codifying and promoting international law, although it is acknowledged that this project
begun with the activities of the League of Nations from 1924 onwards.
In general, codification in international law is achieved either through the production of a
binding interpretation of an underlying custom by agreement, or through a treaty. What was unique
about the ILC was that in the case of acts of codification undertaken by this body, states not party
to such treaties were nonetheless expected to accept the work of the ILC in the name of customary
law. This was declared possible because the general principles of international law were seen as
concurrent with those commonly recognized by the major legal systems of the world. Meanwhile,
non-legal scholarship on this issue points out that only a very small section of international law
achieves the binding force of peremtory norms (jus cogens) and thus could include all states with
no permissible derogations. Despite this uneven state of affairs in terms of legal certainty as to what
international law stands for in its post-WWII format, both jus cogens and opinio juris are
persistently cited as among the fundamental principles of international law. This is despite the fact
that, unlike ordinary customary law that traditionally requires consent and allows the alteration of
obligations between states through treaties, neither jus cogens nor opinio juris could be violated or
questioned by any state. An added complication is that the actual list of peremptory norms is not
exclusively catalogued. In legal terms, they are not listed or defined by any singular authoritative
body. Rather, they often arise out of case law, customary law, and, in cases such as crimes against
humanity, as a direct result of changing social and political attitudes within the institutional bodies
now given power to produce new laws, such as the International Criminal Court (ICC). Generally
included in this list are prohibitions on waging aggressive war, war crimes, piracy, genocide,
slavery, racial discrimination, and torture, in addition to crimes against humanity. Despite the
seemingly clear weight of condemnation related to such practices, the division of international legal
norms into a hierarchy causes serious problems regarding both consensual ratification and
enforcement. Furthermore, there are disagreements over whether a particular case violates a
peremptory norm, and how and by whom such an occurrence is to be determined. As in other areas
of international law, states generally insist on reserving the right to interpret these norms. Where
there are disputes about the exact meaning and application of international law, ultimately their
resolution is deemed the responsibility of national courts, unless otherwise specified as in the case
of the ICC. In other words, to decide what a particular international law means or how it could be
interpreted rests with the superior domestic courts, unless extenuating circumstance dictate
otherwise. Legal entities such as the ICC or the ICJ are allowed to enter into the debate only if the
national courts fail to give “true meaning” to the jus cogens interpretation of a specific violation.
Meanwhile, domestic practices of providing a rendition for jus cogens often lead to a compromise
between three different forms of legal interpretation. The textual approach dictates a restrictive
interpretation based on the “ordinary meaning” of the norm or ruling in question; the subjective
approach considers the idea behind the letter of the law, as well as the context within which it came
into existence or was put into force; and finally, interpretation can also be conducted in the light of
both the object and the purpose of a given norm or ruling. These variations in interpretation imply
differences in the understanding and entrenchment of international law within the domestic sphere,
as is to be expected. In other words, as much as legal scholarship would like to capitalize the
importance of opinio juris and jus cogens, international relations scholars in all camps are equally
determined to reveal the highly political nature of these principles celebrated in the field of
international law.
III. JUS GENTIUM AND THE OUTER LIMITS OF INTERNATIONAL LAW
Historically, international relations scholars have regarded international law with a marked
degree of distance, on the presumption that what exists in the domain of law could only be a
reflection of what goes on in the domain of politics. In other words, although the world of all things
legal distinctly assumed its autonomy, international relations scholars saw this selfperception and
self-presentation as nothing more than a comforting illusion for those who subscribe to it. In
particular, the lack of a systemic inclusion of the issue of the exercise of power by states into the
study of legal processes and structures has long been taken as a demonstration that legal scholarship
suffers from a lack of depth and width in its understanding of how power is organized,
operationalized, and, of course, maintained. I would disagree with this conclusion and attribute it
in part to the lack of dialogue between these two spheres of scholarship. However, it is important
to make a note of this disjunct here as it clouds our perception of what to do with power and
hegemony, and in general history, in the context of internal debates on international law. This is
particularly relevant for the exercise of determining the limitations of universalized applications of
international law, which is an important part of the focus of this dissertation.
Needless to say, a judicious assessment of both the limits and possibilities inherent in the
conduct of international law requires that a bridge be established between these two domains of
scholarship. Whether this would happen through the translation of the terms and workings of
international legality into the language of political science, or through making the conceptual basis
of international relations debates more transparent to scholars and practitioners of international law
surely depends on the initial motivation for attempts at such a bridging act. Two main issues must
be addressed in this context. First and foremost, debates on both the sources and the meaning of
customary international law assume something without ever feeling the need to explicitly
mentioning it; this is the “legal personhood of the state.” It then becomes extremely difficult for the
unsuspecting eye of the non-legal scholar to identify the distinction between “opinio juris”’ and
“consensual state practice” in international law scholarship. Secondly, what states might be legally
obligated to do under the rubric of international law, and what they actually do and for which
specific reasons (apart from legal ones), is as important as opinio juris in particular, and jus gentium
in general. In this context, the first critical question concerning the connection between legal and
political science inquiries, and the study of international law is to determine whether opinio juris
gives the acts of a state their legal significance, and thus stands for more than a widespread
consensus symbolizing a shared, though contextually bound, understanding among states. Only on
the condition that opinio juris is larger and deeper than occasional moments of forced or voluntary
consensus on specific issues could states receive their norms and guidance about what is legally
relevant or consistent through jus gentium. The next question that troubles non-legal takes on
international law is related to how the codification of jus gentium takes place. In this regard, the
“customary processes” depicted by legal theory are often deemed inadequate to diffuse widespread
consensus regarding what jus gentium stands for and requires of states. Consequently, the
articulation between customary international law, its codification practices, and exercises of power
in international politics came to constitute a real divide between legal and political studies of
international law. That is what is being attacked and systemically eroded via the interventions of
TWAIL scholarship in particular, and critical debates emanating from the Global South in general.
Power, needless to say, comes in many forms and disguises. Both consent and coercion are
essential means through which power is exercised. In other words, effective control and
dispensation of force, as well as claims of legitimate authority, are equally needed for the use of
power. As such, the critical international relations scholar dares to question why legal scholarship
on international law privileges or isolates the power of rules as the ultimate tool for constraining,
persuading, and guiding behavior, at the expense of things that are overtly political in their nature.
Why, when we study international law, are we to separate power as it is conceived within the
framework of a legal system from power in its other embodiments? Could developments in
international law solely be explained by the unfolding jurisprudence of international law alone?
Could law generate its own source of legitimacy in an all-encompassing way? How could we
understand the background to the foundational principles of international law, such as reciprocity,
jurisdiction, legal personality and legitimate expectations, as well as their effects in constraining
and influencing how states behave, without paying attention to the very mechanisms that define
and sustain these states? Why is it that the idea of obligation constitutes the distinguishing mark of
an international law scholar’s worldview, as opposed to the idea of conflict? In international
relations literature, the same world of interstate relations is defined by anything but the principle of
obligation and the rule of law, regardless of the school of thought a particular scholar ascribes to.
Furthermore, current critical scholarship in IR goes as far as suggesting that obligations and rules
sanctified by international law are often used to qualify the abuse of power within the international
system by bigger and richer states against others.
Legal scholars could of course posit that the obligations of international law are designed,
first and foremost, to constrain violence and excessive use or abuse of power, in addition to framing
rights that are at least in principle applicable to all members of the “international community,” as
they are bound by international law. Yet, what about obligations, such as those related to
“humanitarian law,” that can generate a correlative right to apply power against select states despite
the right to territorial integrity or immunity from interference, as exemplified by the invasions of
Afghanistan and Iraq? If the foundational principles of international law are indeed there to
condition states in their attempts to modify customary international legal rules within the bounds
of judicial merit and legitimate expectation, then explicit respect is paid to the legal personhood of
the state at the expense of other international entities. If international law is open to change
emanating from within the system—as long as it is consistent with its founding premises—this
amounts to a protection of the existing status quo of unequal relations and historical injustices.
Among the principles of international law cited above, reciprocity emerges as primary in
international legal relations. It is assumed to ensure—at least in principle—that the activities and
claims of powerful states could be moderated by the knowledge that other states or conglomerations
of states have the right to engage in similar activities or to make similar claims. International
relations scholarship on international law, on the other hand, openly depreciates the principle of
reciprocity as a mere front, and not an effective device in regulating interstate relations—or indeed
any other form of inter- or transnational politics. This is despite the fact that the legal principle of
legitimate expectation encompasses powerful norms such as pacta sunt servanda. In contrast, from
the classical legal scholarship point of view, the principle of legitimate expectation combined with
the principle of reciprocity could build into the system of international law the desired degree of
stability, both in the operation of its rules and in the structure of its institutions. Here the assumption
is that there is indeed a stable set of constraints operating on powerful states in international law,
and thus fears that it will only serve the interests of the mighty is unjustified. Legal scholarship has
traditionally insisted that once norms are created in international law, based on shared
understandings of the customary processes, the relationship between law and politics is no longer
a one-way street.
In summary, whichever route one takes to a full-fledged understanding of international law,
the intersection of politics and law appears a key preoccupation. Legal scholarship on international
law cannot avoid debates on the power/law nexus, and the contributions of critical legal studies
scholarship, the New Haven School, debates on transnational law, and TWAIL scholarship readily
attest to this inevitability. On the international relations side of things, the
long-lived doctrinal triumph of realism has not helped to create conditions for an interdisciplinary
examination of international law. In particular, “realist” international relations scholarship of the
1940s and 1950s showed a very strong dislike for the “idealist” international law of the inter-war,
and later on post-war, period. Scholars as high profile as Hans Morgenthau branded international
law scholarship— refererring explicitly not only to legal positivism but also to liberal idealism-as
naïve, dangerous and morally dubious.242 The peculiar relationship between legal positivism and
political realism thus assumes a long history, with each constituting the “classical paradigm” for
their respective disciplines. One may in fact go as far as arguing that they are in effect fully
complementary with each other’s projects, particularly regarding the issue of the state. Both are
state-centric, though legal positivism is so inherently and intrinsically, when compared to realism’s
formulaic focus. Both take the state for granted, the former by not talking about it other than in a
subsidiary manner or as background, and the latter by always starting the debate from state interests.
Equally significant for the purposes of the present analysis is the fact that although neither school
now enjoys the intellectual dominance once characteristic of them, both realism and positivism
have left strong legacies. Any critical activity in international relations literature on international
law, for instance, begins with a well-versed attack on either or both; this includes but is not limited
to work by liberal internationalists and cosmopolitanists, neo-Marxists, constructivists,
institutionalists, and of course critical theorists of a post-modernist persuasion. Legal positivism,
on the other hand, is a common target for both critical legal scholars of myriad schools and
transnationalism debates in international law. The remaining question is whether, by attempting to
surpass both legal positivism and realism in a sweeping motion, these new developments in either
of the fields have managed to tackle the issue that both have in common while being acutely
unaware of its shared status: the state. Furthermore, whether it is the same state we are talking about
in each case is a question mostly avoided outside of particular cases such as TWAIL scholarship.243
Hathaway, "The Continuing Influence of the New Haven School” (2007) 32 Yale J. Int'l L. 553; Siegfried Weissner,
"Law as a Means to a Public Order of Human Dignity: The Jurisprudence of Michael Reisman” (2009) 34 Yale J.
Int'l L. 525.
242 See Hans Morgenthau, Politics Among Nations (Alfred Kopf, 1948). Also see Gerry Simpson, "The situation
on the international legal theory front: the power of rules and the rule of power” (2000) 11 European Journal of
International Law 439.
243 For an idealist take on the issue of the state in international law, see Malcolm Langford, Global justice, state
duties: the extraterritorial scope of economic, social, and cultural rights in international law (Cambridge University
IV. JUS COGENS OR NOT—DILEMMAS?
The standard account of customary international law is that it arises from the widespread
and consistent practice of states acting out of a sense of legal obligation, though this is in turn owed
to many hegemonic practices and global hierarchies. This account, although commonly recited, is
plagued by evidentiary, normative, and conceptual difficulties, and has been subjected to increasing
criticism.244 A fundamental problem with much theorizing about international law is that it fails to
identify the decision-maker(s) under study. Instead, the discussion proceeds as if international law
exists in the abstract, without any particular political entity to interpret and apply it.245 In
contradistinction, the application of a fundamental norm like jus cogens cannot be understood
without paying attention to the preferences of the relevant legal actors. In the absence of a
controlling treaty, these preferences provide the actual content of jus cogens above and beyond the
letter of the law, perhaps somewhat akin to the judicial development of AngloAmerican common
law.246 Immunities in international law expose multifaceted tensions between the conflicting goals
of international stability of the state-system and legal accountability of the states. The laws
arranging immunities do not provide conceptual and doctrinal coherence in terms of the relationship
between state immunity and jurisdictional universalism. Foreign sovereign immunity and official
status-based immunity are jurisdictionally sound, and protective of the existing state system in that
they block the exercise of adjudicative jurisdiction by foreign states’ courts. However, these
immunities do not necessarily preempt the prescriptive jurisdiction of foreign states’ laws to
regulate conduct—even conduct inside other states—if a basis of prescriptive jurisdiction exists in
international law such as the kind dictated by jus cogens norms. This is particularly important in
the case of universal jurisdiction for state criminality. The question is to understand what determines
a particular violation’s status as subject to peremptory
Press, 2013). For a comparative analysis of the treatment of the state in international law scholarship, see David
Bederman and Chimene Keitner, International law frameworks (West Academic, 2016). For a heavily critical take, see
Simpson, Gerry, “The sentimental life of international law” (2015) 3 London Review of International Law 3.
244 See Leonard Hammer, A Foucauldian appraoch to international law: descriptive thoughts for normative
issues (Routledge 2007) as well as Bederman and Keitner, International law frameworks, supra note 236,
particularly the section on legal obligation.
245 See Dinah Shelton, "International law and ‘relative normativity’” (2004) 2 International law 159.
246 For an authoritative and all encompassing treatment of jus cogens, see Marteen den Heijer and Harmen van
der Wilt, eds. Netherlands Yearbook of International Law 2015: Jus Cogens: Quo Vadis?. Vol. 46. (Springer, 2016).
norms and prescriptive jurisdiction in international law. Considering the notion of a hierarchical
international legal order whereby (certain) norms are elevated to a superior level, classical
scholarship posits that international law has largely developed as a horizontal system of norms. The
most prominent exception to this is the concept of jus cogens, which denotes a substantive
hierarchical superiority in international criminal law. Since most of the accepted items clustered
under jus cogens norms belong to the domain of human rights violations and state criminality, there
is a tendency to presume that human rights concerns sit at the top of the pyramid of international
legal norms. Yet it remains highly questionable whether the jus cogens-based substantive norm
hierarchy is anything more than theoretical or aspirational. Due to the rather narrow interpretation
of the scope of jus cogens norms in both domestic and international judicial practice, in reality they
remain within the horizontal scope of international law, unless used by powerful legal actors.
I would argue that this dynamic endemic to the relationship between state sovereignty and
universal jurisdiction holds two important consequences for the current state of international law.
The connection between immunities and applications of jus cogens is a very important one in the
sense that the latter introduces practices that are against the mandate of the former in international
law, in particular in the domain of criminal law. A few caveats are necessary here. First, the relevant
law preempting immunities normally accorded to the state is the law in existence when a court
determines whether to entertain suit, and not the law in existence at the time of the domestic conduct
leading to the international adjudication of the issue. As a result, the viability of claims from the
same underlying facts could and does change along with shifts in international law. This in turn
causes complaints concerning legal certainty of adjudication under the aegis of international
criminal law. Second, peremptory norms doctrines by and large lack rule-of-law coherence, since
they are often embroiled with problems of their accepted legality and possible retroactive
applications. This has been particularly troubling in the interpretation of ICC judgments discussed
in previous chapters, and it is an issue receiving further elaboration in the next chapter of this work
on hybrid courts and tribunals. If we were to assess violations of jus cogens, or peremptory norms
of international law, compared with the relatively settled laws of foreign sovereign and status-based
immunities, it would become apparent that international law of conduct-based accountability and
removal of immunities is in a state of flux. Since customary international law arises from state
practices and opinio juris, arguments used to avoid direct collisions between state sovereignty and
jus cogens do not necessarily lend themselves to a distinct doctrine of international law in this area.
Most prominently, arguments suggesting that jus cogens addresses substantive prohibitions under
international law may not even apply when the acts at issue are to be brought to trial under conduct-
based jurisprudence and in ad hoc settings. Bending towards accountability norms whereby the law
about state criminality is unsettled is not a high priority in international law. The only exception to
this seems to emerge where international legal bodies are engaged in determining culpability and
accountability concerning the acts of the states and high ranking officials representing the state in
the Global South. Only then, it appears, do jus cogens norms become well and alive. If so, jus
cogens norms do not hold such a unique position in the hierarchy of international law. The
presumption that, unlike treaty law, peremptory norms abide no derogation and are binding on all
states regardless of their willingness to be bound by them translates, in actual practice, into
something else. As a result, I would argue that the authority of peremptory norms cannot be
adequately explained by positivist, institutionalist, and voluntarist explanations of their authority.
Perhaps the only other option available is an explanation from natural law or its derivatives, if the
authority of peremptory norms is to avoid the conceptual difficulties engulfing their traditional
renditions. I will further explicate this issue in the last chapter of this dissertation, on collective
responsibility and applied political philosophical debates on the notion of justice as it relates to
virtue ethics on the one hand, and natural law theories on the other.
Meanwhile, in the next two chapters of this dissertation, I will first attend to the applicability
of the principle of legal certainty to the category of crimes against humanity and highlight some of
the missing connections between jus cogens norms, erga omnes crimes and actual international law
adjudication of egregious criminal conduct. I will further exemplify my misgivings on the issue of
the application of universal jurisdiction concerning crimes against humanity legislation through a
discussion on limits of ICC jurisprudence and potential avenues for alternative practices in the form
of hybrid courts and tribunals. However, before advancing the debate on universal jurisdiction in
that particular direction, first I will summarize my findings concerning the doctrinal limits of
universal jurisdiction in terms of its applications in the Global South.
CONCLUSION
The thrust of this chapter was the critical examination of the matter of the state in
contemporary international law, in relation to the work done by international relations scholars on
the same subject; and to determine how these findings relate to some pertinent issues concerning
statehood and sovereignty in the Global South under the aegis of the global application of jus
cogens norms. This examination was essential for understanding the limits of universal jurisdiction,
which is the main tenet of adjudication of crimes against humanity.
The central motif of this chaper was understanding how conceptualizations of the state—
as emblematic of power relations in general—shape the context as well as content of processes and
practices of international criminal law in the Global South. The original idea for this inquiry
emerged from the observation that a noteworthy conglomeration of recent trends in international
relations seemed to insist that they have solutions to offer for deficits in the study of international
law. However, upon closer examination, it has become apparent that the leading cadres of
international relations scholarship today no longer takes much interest in the state, and rather treat
it either as a relic or as a nuisance. The claim that it is possible to bring these two enterprises,
namely international relations and international law scholarship on the subject of law, together in
the form of a dialogue without sorting out what separated them in the first place has thus proved
absurd. There is no foundation upon which one can appeal for a common understanding of
international law other than the one that engages with power, hegemony and histories of discontent.
As such, one comes across a series of semi-independent conversations amongst individuals familiar
with each other’s intellectual traditions and methodological preoccupations. In this sense, the most
distinctive feature of the current study of international law could be determined as the decisive
conflation of its subject and its object, the state. The possibility of an external normative order
grounding the equality and morality of the state on an autonomous system of legal sources and
processes is currently all the rage. Oddly enough, now that the classical bastion of state-centric
analyses of politics—i.e. international relations—no longer cares much for the state, one is faced
with the illusion that legal and non-legal scholarship are indeed engaged in a new kind of dialogue,
despite all their previously missed opportunities. The characteristics of contemporary legal
arguments on international law as a result remain elusive. The evasive rhetoric of the discipline
regarding the state in particular, and power relations in general, provides the ultimate guarantee for
its intellectual and professional autonomy. The traditional circles within which this kind of noble
self-isolation would have been methodically scrutinized, international relations scholarship, is too
busy with other questions.
In this context, the suggestion made in this chapter is two-fold. First and foremost, the
debate about the state should at least remain a point of discomfort for international law scholarship.
Second, the grammar of legal theory attending to international law should include the state as a
problem-laden point of reference, rather than a foundational pillar, and contextualize it both
geographically and historically. Perhaps then we could finally start a genuine conversation about
why the state no longer seems to matter as much as international law once assumed it to. Through
interdisciplinary dialogue, we may indeed develop a deeper understanding of law’s secretive over-
dependency on the state. Unlike the immediate post-war years, the international law scholar’s
ultimate wish to dispense with the need for the consent and compliance of the sovereign state now
very much coincides with the reality that his/her counterparts work with across the disciplinary
fence, in the field of international relations. However, the challenge now comes from elsewhere,
the Global South, whereby the state reemerged as a bastion of hope against the invasive forces of
neoliberalism and global constitutionalism. Coming back full circle, on the issue of how to relate
to the state in the context of Global South’s engagements with international law, a major
consequence of the new global restructuring of states, societies and economies has been the double
process of further and deeper integration to the global market on the one hand, and, social exclusion,
dispossession, and emergence of novel forms of widespread insecurity and precarity, on the other.
These processes have led to an exponential growth of marginalized and deinstitutionalized
subaltern classes, especially in the Global South, rendering them all the more vulnerable to
becoming subjects of state criminality. Critically navigating through prevailing perspectives on
international criminal law pertaining to violent acts and crimes committed by states against their
own people-- otherwise known as crimes against humanity, the next three chapters of the
dissertation will thus strive to propose an alternative outlook. In the spirit of a “quiet encroachment
of the ordinary,” I will address crimes against humanity first normatively, then as seen through the
mechanisms of international law as they are sought to apply in the Global South, and finally from
within the states and societies wherein they are committed.
International law, and in particular international criminal law, reproduces many of the
oligarchic tendencies in global governance, while also creating ambiguities and a new multilateral
ethos of indifference. Within these parameters of a dialectics of stability and change, practices and
processes not only inhibit global transformations and reproduce some of the most oppressive
conditions of the existing order, they also lead to new openings. As the following discussion on
crimes against humanity will illuminate, international criminal law is not immune to these
coexisting forces and, as such, it can harbour promises as much as it casts long dark shadows.
Chapter IV. Crimes Against Humanity Legislation in International Law and The Conundrum
of Jurisdictional Certainty
INTRODUCTION
This chapter pursues the question of what distinguishes crimes against humanity from other
crimes, as well as why and how they fall under the purview of universal jurisdiction. To this end, it
examines the jurisprudential architecture of crimes against humanity legislation in order to
determine whether jurisdictional certainty alone would suffice for establishing the basis for
adjudication to ensue. In this work, crimes against humanity is the key category of criminal conduct
codified by international law that I chose to use as the basis of my analysis concerning limits of
universal jurisdiction. This is so not because the crimes that fall under its aegis constitute in any
way less than a frontal assault on human dignity and humanity at large. Rather, the conundrum
concerns the impossibility of removing the vestiges of a historically skewed regime of
accountability in international law regardless of the severe and egregious nature of such crimes. In
other words, the problem rests with the way international [criminal] law operates and not with the
applicability of the norm of universal jurisdiction to crimes against humanity. In this context, let
me start this somewhat unsettling discussion with the citation of a very recent incidence befitting
the definition of such crimes, and use this vignette as a starting point to analyze the current
impossibility of legislating an applicable punishment scheme against many such crimes.
In August 2016, the Syrian Network for Human Rights (SNHR) published a report in which
it documents in detail the crimes against humanity and war crimes that led to the complete
depopulation of Darayya city.251 The SNHR is an independent, non-governmental human rights
organization founded in June 2011, and is a certified source for the United Nation of statistics about
human rights violations in Syria. The report notes that all truces and reconciliations regarding
circumstances in Darayya were implemented while negating basic international
251 See the Report, ‘Crimes against Humanity and War Crimes are the reason behind the Forced Migration in
Darayya: Siege, Chemical Weapons, Barrel Bombs, and International Silence’ at
http://sn4hr.org/wpcontent/pdf/english/Crimes_against_humanity_forced_displacement_for_Daraya_en.pdf
[03.03.2017]
humanitarian and human rights law. Negotiations were carried out under oppression and dictated
by siege, indiscriminate bombing, starvation, and the prohibition of civilian residents and aid from
getting into or out of the city. According to the report, the crime of en masse forced displacement
was carried out in a blatant manner in Homs, Darayya, and Banyas. This particular report is one
example amongst many documenting mass political violence committed by states against their own
citizens since 1945. In this sense, it does more than shed an at least partial light on the drastic
changes in the demography of Syria over the past six years as a result of the killing, indiscriminate
and deliberate bombing, and destruction of livelihood of civilian communities. It also provides an
inlet into a more nuanced understanding of the limits of the applications of crimes against humanity
legislation in situ. In Syria, close to seven million people have been displaced and became refugees,
while 6.3 million people have become IDPs. Such demographic changes undoubtedly pose threats
to the wellbeing of the peoples of the entire region, but equally importantly they raise the additional
challenge of establishing an accountability regime in the aftermath of the still-ongoing war. In the
specific case of Daraya city, for instance, the report records the killing of no less than 817 civilians,
including 67 children and 98 women, during the time period covered by the report. These numbers
and associated circumstances of the killing of civilian populations constitute an additional concern
for the determination of the extent of crimes against humanity committed during the Syrian War,
even as they are naturalized as wartime casualties. Again according to the report, government
forcesowned helicopters dropped no less than 7,846 bombs on the city, including barrel bombs
loaded with a flammable substance that is evidently napalm. The report then documents that the
siege imposed on the city and its fallouts, such as shortages in food and medicine, resulted in
civilian deaths as well. Finally, there are 4,311 forcibly-disappeared persons from Darayya who
were arrested by government forces, while later on the authorities denied their existence.
The commonly accepted understanding of the modern concept and related jurisprudence of
crimes against humanity is that this section of international law is a product of the horror of the
crimes committed during the two World Wars. It was then revitalized due to the growing consensus
amongst both European and post-colonial states that certain crimes committed within national
borders and by the states against their own citizens should be legitimate subjects of international
law and adjudication. However, unlike war crimes and genocide, the law of crimes against
humanity has primarily developed through piecemeal additions to customary international law.257
Today, the statutes of most international and internationalized tribunals such as the International
Criminal Court’s Rome Statute contain definitions of these crimes, though there are significant
differences in terms of the jurisprudence employed by different international, regional and hybrid
courts. To say the least, the evolution of the definition of crimes against humanity as an international
instrument has not been linear.259 As far as the practices of international courts are concerned, later
definitions are often more expansive, while at the regional level domesticated definitions tend to
be narrower than their international counterparts. Furthermore, the contents of the legal norms jus
cogens and erga omnes obliging state parties to punish crimes against humanity remain subject to
greater controversy than has been the case in the prescribing of punishment for genocide and war
crimes.260
Overall, one might say that these are internal disputes, jurisprudential matters to be settled
in the courts themselves. In this work, however, I will argue otherwise, and posit that many of these
seemingly jurisprudential disputes actually relate to the criteria used for the determination of what
constitutes crimes against humanity on the ground. Therefore, there is actually an intrinsic politico-
normative challenge on the issue of their universal applicability. In
crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.” [This definition was also used in the Charter of the International Military Tribunal for the Far East.] The
Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Article 5:
“…the following crimes when committed in armed conflict, whether international or internal in character, and directed
against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f)
torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.”
The Statute of the International Criminal Tribunal for Rwanda (ICTR), Article 3:
“…the following crimes when committed as part of a widespread or systematic attack against any civilian population
on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d)
Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i)
Other inhumane acts.”
The Statute of the Special Court for Sierra Leone (SCSL), Article 2:
“…the following crimes as part of a widespread or systematic attack against any civilian population: a. Murder; b.
Extermination; c. Enslavement; d. Deportation; e. Imprisonment; f. Torture; g. Rape, sexual slavery, enforced
prostitution, forced pregnancy and any other form of sexual violence; h. Persecution on political, racial, ethnic or
religious grounds; i. Other inhumane acts.”
The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC), Article 5: “…any
acts committed as part of a widespread or systematic attack directed against any civilian population, on national,
political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment;
torture; rape; persecutions on political, racial, and religious grounds; other inhumane acts.”
259 For instance, in 2002, the USA asked all countries who were part of the ratification scheme for the ICC to
sign agreements exempting US citizens from prosecution by the Court, and threatened economic sanctions if they
refused. Some countries yielded to this pressure even after ratifying the ICC Statute, while others chose to honor their
original commitments. Why some countries were more responsive to US influence than others is not a question that
will be dealt with in here. However, no doubt state vulnerability to attempts of influence through the lens of economic
sanctions played a significant role. What is important for the present context is the introduction of bilateral immunity
agreements (BIAs) into the architecture of the Rome Statute. For further debate, see I. Nooruddin and Autumn
Lockwood Payton, “Dynamics of influence in international politics: The ICC, BIAs, and economic sanctions” (2010)
47 Journal of Peace Research 711.
260 On the disputed nature of the norm, see P. Wald, “Genocide and crimes against humanity” (2007) 6 Wash. U.
Global Stud. L. Rev. 621; R. K. Paterson, ‘Resolving Material Culture Disputes: Human Rights, Property Rights and
Crimes against Humanity’ (2006) 14 Willamette Journal of International Law and Dispute Resolution 161.
jurisprudential terms, the primary challenge in defining crimes against humanity is to identify the
precise elements that distinguish these offenses from crimes exclusively subject to national laws.
The definition itself not only determines the scope of international jurisdiction, it also gives rise to
a number of important consequences concerning trial structure, conditional and selective removal
of immunities and the commuting of sentences. Unlike the majority of domestic crimes, these
offenses are generally considered outside the purview of statutes of limitations. Equally
importantly, the immunities that often shield state representatives and high-ranking public and
military officers from criminal responsibility are categorically removed in the context of crimes
against humanity, at least when trials are held before international tribunals or domestic courts
employing universal jurisdiction. Although the concept of universal jurisdiction—the principle that
certain crimes are subject to jurisdiction by all states—remains controversial vis-à-vis the capacities
of domestic courts, proponents of universal jurisdiction invariably include crimes against humanity
within its scope. If put into practice, the principle would deliver the following result: while the
crime of murder could only be tried in a court with a jurisdictional link to the act, a murder
committed as a crime against humanity could be tried in any criminal court in the world. Finally,
the prohibition of crimes against humanity is a jus cogens norm of international law, thus certifying
that its derogation is not pardonable or to be permitted under any circumstance. As a result of its
special status, at least in theory, states have an obligation under international law either to prosecute
perpetrators of crimes against humanity or to extradite them to states intending to pursue
prosecutions, hence the erga omnes part of the equation pertaining to this particular set of crimes.
In light of the serious legal consequences of designating an offense a crime against humanity, as
well as the severe moral condemnation the label entails, the importance of understanding the exact
judicial nature of these offenses needs no further emphasis. However, this chapter is not an exercise
in that vein. Although it does provide a brief historical sketch of the evolution of the norms and
jurisprudence prohibiting crimes against humanity, as well as an assessment of the current state of
the definition with respect to each key element of its constitutive crimes, the core of the argument
developed in the following pages pertains to another and, I would purport, an equally important
issue: the politico-normative framework within which these offenses find meaning and are deemed
worthy of trial in the domestic setting. In this sense, the focus is to be shifted away from institutions
such as the ICC to hybrid courts and the overall possibility of the domestication of this particular
category of international crimes.
In essence, crimes against humanity are mass crimes committed against the fundamental
human rights of a civilian population. In this context, I make the point that their common inclusion
under humanitarian, rather than human rights, law is misleading and has grave consequences. They
are rightfully distinguished from egregious state crimes such as genocide in that they need not target
a specific group, but may aim at the civilian population in general. Thus, they include crimes against
political and or other groups, and creating conditions of generalized trauma and loss. In contrast to
genocide, it is not necessary for the perpetrator to intend to destroy a group as such, in whole or in
part. Similarly, crimes against humanity should be regarded different from war crimes insofar as
the criminal conduct may be directed not towards the legally defined enemy's popluation but against
the perpetrator's own; hence the difficulty of their legislation. In the following pages, an appeal is
thus made to understand the politico-normative precepts of crimes against humanity jurisdiction,
in an attempt to render them meaningful and useful within the domestic realm, where these crimes
are perpetrated, rather than being seen as an imposition by an international court or a consortium
of states (the latter format commonly known as “victor’s justice”).
I. JURISPRUDENTIAL ARCHITECTURE OF CRIMES AGAINST HUMANITY
In international law, crimes against humanity found their first explicit formulation as a
category of crime in Article 6 (c) of the Nürnberg/Nuremberg Charter which emerged from the
Tribunal. The offenses categorized as crimes against humanity were also included in Article 5 (c)
of the Tokyo Charter and Article II (1) of Control Council Law No. 10. While the Nuremberg and
Tokyo Charters required that crimes against humanity evidence a connection to aggressive war or
war crimes, this supplementary requirement was left out of Control Council Law No. 10. The
Statutes of the Yugoslavia and Rwanda Tribunals and the International Criminal Court have then
reaffirmed the customary law character of crimes against humanity, and the prohibition of crimes
against humanity was recognized as having the status of jus cogens and belonging to the domain of
erga omnes.
The legal phrase “crimes against humanity” was first employed earlier, in a 1915
Declaration by the governments of Great Britain, France and Russia which condemned the Turkish
government for the alleged massacres of Armenians as “crimes against humanity and civilization
for which all the members of the Turkish Government will be held responsible together with its
agents implicated in the massacres.” Despite this early use of the term, however, the first full
prosecutions of crimes against humanity did not take place until after the Second World War in
1945, in the form of the International Military Tribunal (IMT) at Nuremberg, Germany. The charter
establishing the Nuremberg IMT defined crimes against humanity as murder, extermination,
enslavement, deportation, and other inhuman acts committed against any civilian population, before
or during the war, or prosecutions on political, racial or religious grounds in the execution of or in
connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where they were perpetrated. Subsequent to the Nuremberg Charter,
the Tokyo Charter of 1946 established the International Military Tribunal for the Far East,
incorporating the same definition of crimes against humanity. Following the Nuremberg and Tokyo
trials of 1945-1946, no other international tribunal with jurisdiction over crimes against humanity
was established until the Yugoslav and Rwanda Tribunals. However, in 1947, the International Law
Commission was charged by the United Nations General Assembly with the formulation of the
principles of international law recognized and reinforced in the Nuremberg Charter and judgment,
and drafted a “code of offenses against the peace and security of mankind,” which included crimes
against humanity. In 1996, this Draft Code from 1947 was brought to the attention of jurists who
reinstated crimes against humanity as inhumane acts including murder, extermination, torture,
enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized
discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment,
rape, enforced prostitution, and other inhuman acts committed in a systematic manner or on a large
scale and instigated or directed by a Government or by any organization or group within the
boundaries of a state. This latter definition differs from the one used in Nuremberg in the sense that,
as stated above, the former only targeted criminal acts that were committed “before or during the
war,” thus establishing a prescriptive nexus between crimes against humanity and armed conflict.
Prior to the 1996 definition, in 1993 the International Criminal Tribunal for the Former Yugoslavia
(ICTY), established by the UN Security Council in order to investigate and prosecute genocide,
war crimes, and crimes against humanity which had taken place in the former Yugoslavia, have
already opened up the 1947 draft definition. However, it did so only for the specific case of the
former Yugoslavia. Although the ICTY’s connecting of crimes against humanity to both
international and non-international armed conflict led to the expansion of the list of criminal acts
used in Nuremberg to include imprisonment, torture and rape, as per Article 5 of the ICTY Statute,
this was done so with reference to a specific case. In 1994, the UN Security Council established the
International Criminal Tribunal for Rwanda (ICTR) pursuant to the genocide that had taken place
between April and July 1994. This second ad hoc international criminal tribunal yet again changed
the scope of the definition of crimes against humanity. In the ICTR Statute, the linkage between
crimes against humanity and an armed conflict of any kind was dropped. Rather, a new requirement
was added that the inhumane acts must be part of a “systematic or widespread attack against any
civilian population on national, political, ethnic, racial or religious grounds,” as per Article 3 of the
ICTR Statute. This change was stipulated due to the concern that, given the internal nature of the
conflict in Rwanda, crimes against humanity would likely not have been applicable if the nexus to
armed conflict had been maintained.
The most up-to-date definition of crimes against humanity came with the establishment of
the permanent International Criminal Court in 2002. In its founding treaty, the Rome Statute, crimes
against humanity are stated somewhat differently than in any of the preceding legal definitions. For
the purpose of this Statute, “crime against humanity” means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer
of population; imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court; enforced disappearance of persons; the
crime of apartheid; and other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health. Essentially, the Rome Statute
employs the same definition of crimes against humanity that the ICTR does. However, it removes
the requirement that the attack have been carried out “on national, political, ethnic, racial or
religious grounds.” In addition, the Rome Statute definition offers the most expansive list of
specific criminal acts to be covered by international criminal law. Despite the extensive degree of
legislation, however, international law scholars have repeatedly pointed out the need for a
specialized convention on crimes against humanity. This is in part due to the fact that its current
framing could be problematic in light of the limited application of select principles of legality to
such crimes. For instance, the maxim nullum crimen sine lege, a fundamental principle of
international criminal law, dictates that an individual can only be convicted for specific acts which,
at the time of commission, were known to be of criminal nature. The aforementioned ad hoc
tribunals could not limit their jurisdiction with that maxim. However, there is at least a partial
solution offered to this conundrum in international jurisprudence. Fundamentally, crimes against
humanity are inhumane acts committed as part of a widespread or systematic attack against civilians
by their own state or an organized political authority with jurisdiction over that territory. The
connection to a broader or systematic attack is then what justifies the exercise of international
criminal jurisdiction and thus removes the burden of such crimes not being already codified within
the confines of domestic jurisprudence. Similarly, the erga omnes category dictates the necessity
for any legal party to pursue punishment, even in the event of the impossibility of domestic
adjudication of crimes against humanity. No doubt the erga omnes clause is weaker than the nullum
crimen sine lege dictum, though together they do form a defense of the applicability of crimes
against humanity legislation for both past and present cases. It is also true that some scholars make
a distinction between substantive and procedural law in the context of nullum crimen sine lege.
According to this view, a change in substantive law leading to liability must occur before a criminal
act is committed, but a change in procedural law leading to liability may occur after the act is
committed. For example, extending the statute of limitations to allow the prosecution of crimes that
occurred in the past would constitute a change in procedural law. This would directly apply to acts
punished by international criminal tribunals that were of ambiguous legality in the immediate
context of the conflict or atrocity situations in which these acts were committed. In this regard,
nullum crimen sine lege as the legality principle as it pertains to international law jurisprudence
requires a procedural reading in the case of crimes against humanity. Finally, though the exact
wording of the definitions of crimes against humanity differ in the cornerstone documents that
provide it a juridical standing, each definition is made up of similar underlying criminal elements
(e.g., murder, extermination, rape, and so forth) as well as common contextual elements under
which the criminal act must have been committed.
As far as the structure of these crimes is concerned, the material element of crimes against
humanity requires the commission of a specific individual act in the course of a widespread or
systematic attack on a civilian population. The attack on the civilian population represents the
contextual element of the crime. The mental element requires intent and knowledge regarding the
material elements of the crime, including the contextual element. These crimes affect not only the
individual victim, but as already mentioned, constitue a systematic or widespread attack on the
fundamental human rights of a civilian population as a whole. This particular context of organized
violence calls into question the responsibilities of humanity as a whole against the atrocities
committed by a state against its own people. At least in principle, the norm also protects individual
human rights, including the individual victim's life, health, freedom and dignity.
The object of these crimes is, without exception, harming the civilian population, though
this explicit focus does not apply to the category of war crimes, the latter category including both
military personelle and civilian populations in the category of victims. Furthermore, crimes against
humanity are directed against a civilian population at large and not merely against select
individuals. A civilian population is any plurality of persons that are connected with each other by
common characteristics, including but not limited to ethnicity, religion, race, nationality, and
political belief, and any one of these characteristics could render them the target of an attack. The
most contentious section of this definition is the criterion that the presence of a limited number of
combatants among an attacked civilian population does not negate its civilian character. At times
of ethnic civil war, for instance, the state cannot justify its actions in attacking civilian populations
through the reasoning that they have a military/guerilla arm. Neither is it necessary for the entire
population of a state or territory to be affected by the attack. The civilian character of the attacked
population and persons applies both in civil war and during peacetime. Therefore, for the purpose
of determining the criminal element, a distinction between civilians and noncivilians is not possible
solely by applying the terms of customary international humanitarian law. In the context of crimes
against humanity, application of the notion of harming the civilian population for criminal
adjudication aims to protect the fundamental rights of every human being against any form of
systematic violation. The essential determining factor is the victims’ need for protection, and the
presumption of their defenselessness vis-à-vis the state, the military or other types of politically
organized force. By derivation, anyone who is not part of this organized political power using force
is considered a civilian. Furthermore, it is not the formal status—such as membership in the military
forces—but a person's actual role at the time of commission of these crimes that determines their
culpability under the purview of crimes against humanity. In other words, members of military
forces or other armed groups who have laid down their arms or have otherwise been rendered hors
de combat are not to be subjected to culpability criteria.
Another very important feature concerning the jurisprudential architecture of these crimes
is the idea of “attack.” This element describes a specific course of conduct involving the
commission of acts of violence. Such a course of conduct must include the "multiple commission"
of acts listed in Article 7 (1) of the ICC Statute. However, this does not mean that the perpetrator
needs to act repeatedly by him- or herself. Rather, what is in question is the widespread or
systematic character of these acts of violence. Specifically, the criterion “widespread” describes a
quantitative element related to the crimes committed. The widespread nature of the attack can arise
either from the number of victims or from the extension of its effects over a broad geographic area.
The criterion of a systematic attack, on the other hand, is a qualitative qualifier. It refers to the
organized nature of the committed acts of violence, and thus serves to exclude isolated acts from
the notion of crimes against humanity. Earlier case law of the ad hoc tribunals required that an
individual act that is adjudicated based on the definition of crimes against humanity must follow a
predetermined plan or policy. However, the Appeals Chamber of the Yugoslavia Tribunal then
distanced itself from such a requirement and set a precedent for limited coverage. Accordingly,
although attacks on a civilian population typically do follow a predetermined plan, this does not
make the existence of a plan or policy an element of crime. This argument relies on the principle
that, under customary international law, crimes against humanity do not call for the proven presence
of a policy element. However, Article 7 (2) (a) of the ICC Statute extended the definition again and
stipulated that crimes against humanity jurisdiction requires that the attack on a civilian population
must have been carried out "pursuant to or in furtherance of a State or organizational policy to
commit such attack."
Finally, there is the issue of perpetrators. Perpetrators need not be members of the State or
an organization involved in the crime, but can include all persons who act to implement or support
the policy of the State or the organization in question. These individual acts include killing (Art. 7
[1] [a] of the ICC Statute); extermination (Art. 7 [1] [b]); enslavement (Art. 7 [1] [c]); deportation
or forcible transfer of population (Art. 7 [1] [d]); imprisonment (Art. 7 [1] [e]); torture (Art. 7 [1]
[f]); sexual violence (Art. 7 [1] [g] of); persecution (Art. 7 [1] [h]); enforced disappearance (Art. 7
[1] [i); apartheid (Art. 7 [1] [j]), and ‘other inhumane acts’ (Art. 7 [1] [k]). For all these acts, it must
be proven beyond doubt that the perpetrator acted with intent. He/she must have acted with
knowledge of the attack on the civilian population and must be fully cognizant that the action
constituted a part of the attack.
In the ICC’s jurisprudence, then, emphasis has been placed on the criteria to be fulfilled for
the possibility of persecution of crimes against humanity as defined by post-Second World War
jurisprudence. This led to a narrower interpretation of the term “civilian.” Prior to the Rome Statute,
in some cases courts have interpreted the term “civilian” by incorporating hors de combat.
However, both the ICTY and the ICC have moved towards a more restrictive interpretation of the
term, potentially excluding members of the armed forces. This move may be regarded as regressive,
going against the spirit in which the category of crimes against humanity was created and leading
to a protection gap which crimes against humanity legislation was initially intended to close. In
hindsight, the exclusion of members of the armed forces from the definition of “civilian” may have
been a concession extended to increase the number of signatory states to the Rome Statute.
In summary, crimes against humanity pertain to both past and present atrocities, and two
new concepts have been introduced into the international landscape as a result: the first one
describes the violence, oppression, or persecution undertaken or allowed under law by the state
itself (international crime component), and the second one encompasses the variety of responses to
these acts of violence, oppression or persecution (transitional justice component). With the
establishment of the ICC, the hope arose that common citizens, whose lives were marked by the
violence of genocide, crimes of war, and crimes against humanity, have finally found a platform to
ask for justice and the punishment of persons responsible for these atrocities. However, the truth is
much more complicated, and justice for crimes against humanity is far more evasive than what a
flat reading of the Rome Statute might suggest.
A reexamination of the Tokyo Trial in comparison with the ICC reveals interesting
characteristics concerning the evolution of international criminal law. The background of the Tokyo
Trial was somewhat different from that of the Nuremberg Trial, and it had a unique jurisprudential
context due to the declarations made specifically on Japan by the principal Allied Powers. Among
the crimes provided for in Article 5 of the Tokyo Charter, crimes against peace, for which there was
to be individual responsibility, were the most disputed legislation during the trials. Furthermore,
war crimes and crimes against humanity were not clearly distinguished in either the Indictment or
the Judgment of the Trial. Later discussions on international criminal law led to the necessity of
posing some new questions on the position of peremptory norms in international law, which were
not addressed during the Tokyo Trials. As a safeguard, the 1969 Vienna Convention on the Law of
Treaties introduced the concept of jus cogens into international law. Still, the related category of
erga omnes obligations remains one of the most problemladen areas in international law. The rule
that every state has the right to define its international legal position remains in force. In this regard,
the judgment of the English House of Lords in the Pinochet case is of special interest280, as the
problem of criminal responsibility of individuals for grave violations of international law was
trumped by the concerns about the personal immunity of heads of state, combined with another
problem of (quasi-) universal jurisdiction within British administrative law.
In a larger view, the emergence of legal rules governing criminal liability for genocide
represents the response of society in the face of criminal phenomena that cannot be categorized
otherwise. Punishing those responsible for committing such abominations led to a strong
consecration of the criminality of mass killings at the hands of the state in international
humanitarian law. Regulations concerning the methods and means of war, limiting or prohibiting
the use of certain types of weapons and ammunition, and requiring protection of victims of armed
conflict, a body of legislation known as war crimes, are another example. These may be treated as
prerequisites for the criminalization of actions and deeds circumscribed by crimes against
humanity. Unlike these two other prototypical international crimes—war crimes and genocide—
the proscription against crimes against humanity remains to be enshrined in a domestic
constitutional context. While the former two are primarily used for international law purposes
outside the domain of domestic jurisdiction, and historically in international courts, crimes against
humanity relates to internal affairs of the state and, as such, requires additional steps to be taken at
the national level to enable its local adjudication. As already discussed, the legislation pertaining to
crimes against humanity has developed piecemeal, largely through the legal instruments and
jurisprudence of various courts and tribunals established for adjudicating crimes that fall under this
description. This process has yielded enduring normative difficulties as well as doctrinal
ambiguities. Still, the law against crimes against humanity promises to fulfill a function that no
other body of jurisprudence is or has been capable of in the context of human rights law or
humanitarian law.
II. COMPETING POLITICO-NORMATIVE VISIONS
Despite the long struggle to reach a certain level of jurisdictional certainty, there are foundational
normative questions that crimes against humanity legislation is not fully poised to answer, such as
what makes an inhumane act a crime against humanity, or what is the distinct purpose of
establishing such a category of crimes. This is the case despite the fact that, in the drafting of the
Rome Statute, the differentiation of these crimes from war crimes and genocide
courts to deliver a modicum of justice to the victims of Pinochet. See A. Bianchi, “Immunity versus human rights: the
Pinochet case” (1999) 10 European Journal of International Law 237.
needed to be fortified with substantive legal reasoning. Furthermore, during the Rome Conference
and in its aftermath normative discussions were always circumscribed by the conflicting political
goals of individual states. At least in some cases, delegations were willing to compromise their
vision of crimes against humanity if the alternative was to write off the entire prospect of a
permanent international criminal court. As such, the Rome Conference produced a definition of
crimes against humanity without an underlying or overtly expressed normative consensus. Instead,
several normative visions of crimes against humanity competed, and continue to do so, for
recognition in the law, jurisprudence, and scholarship related to these crimes. In order for the ICC
or other national or international judicial bodies to be able to exercise jurisdiction over crimes
against humanity, it is essential that they be able to identify accurately and consistently situations
in which these crimes have been committed. This is not exclusively a jurisdictional matter. As well,
for judicial bodies to attribute individual criminal responsibility for such crimes without violating
the principle of legality, they must have clear guidance of principles with reference to indictment,
defense, and sentencing. This again is not simply a jurisdictional matter. Finally, in order for states
to justify universal jurisdiction in addressing the commission of crimes against humanity, the scope
of these crimes must be clearly defined. This is perhaps the only aspect of crimes against humanity
with an exclusively legislative focus. Even there, however, politico-normative concerns determine
the threshold for resorting to the exercise of universal jurisdiction, i.e., trying nationals of another
country above and beyond the requirements of nationality-territoriality nexus.
Despite the heavily normative nature of the establishment, adoption, and application of definitions
pertaining to crimes against humanity, declaring them as worthy of international law jurisdiction
simply on the basis that they threaten the peace and security of the world was the central
justification for the Nuremberg Charter and Judgment as reflected in the war nexus. In other words,
it was the context of war that justified the adjudication of such crimes. Atrocities committed within
a state with no connection to war were regarded as concerning that state alone. Indeed, some
participants in the Rome Conference endorsed this perspective as late as 1998. With the Rome
Statute’s coming into effect, however, a broader view of the peace and security rationale was
adopted, which encompasses threats posed by internal armed conflict as well. This latter perspective
also provided the legal basis for the establishment of the ad hoc international criminal tribunals for
former Yugoslavia and Rwanda under Chapter VII of the United Nations Charter. Ultimately, the
elimination of the requirement of any context of armed conflict from the definition trumped the
peace and security rationale for these crimes. However, what is to replace the war nexus is yet to
be determined. Crimes committed in peacetime by a sovereign state pose unique challenges for
international law. The trials about the horrendous crimes of the Khmer Rouge provide an apt
example. In justifying the continued detention of one of the defendants charged with crimes against
humanity, the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’) echoed the old peace
and security rationale. 286 The Rome Statute’s rationale, on the other hand, rests more on the gravity
of the crimes than on any concrete threat to international peace and security. One of the most
frequently invoked justifications for crimes against humanity is then that they “shock the
conscience of humanity.”
This view of crimes against humanity is duplicated in the human rights law framework, as a result
of which crimes against humanity are depicted as particularly severe violations of fundamental
human rights. According to this perspective, the purpose of the overarching category of crimes
against humanity is to capture this seriousness through the requirements of a targeted “population”
and a “widespread or systematic attack.” Proponents of the gravity rationale reject the notion that
crimes against humanity should require a government or organizational policy or a discriminatory
intent. Unfortunately, the difficulty with this latter normative vision is that it necessitates a scale
for judging the gravity of the crime in question. This task is not a legitimate component of
international law, much less of the legislation pertaining to crime against humanity. Nevertheless,
the gravity of the crimes probably remains as the most pervasive normative justification for crimes
against humanity legislation thus far.288
In addition to the peace and security argument and the justification from the gravity of the
and empire of the principles of international law, as they result from the usages established between civilized nations,
from the laws of humanity and the requirements of the public conscience.” See T. Meron, “The Martens Clause,
principles of humanity, and dictates of public conscience” (2000) 94 The American Journal of International Law 78.
288 The contours of the prohibition of crimes against humanity with reference to proceedings before the ICTY and
deliberations at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court
(ICC) prove that, because of the relatively contemporary status of these offenses under international law, a particular
reference to the genesis and re-interpretation of the war nexus requirement is essential. The task at hand is identifying
the elements of these offenses to distinguish them from “ordinary” municipal crimes (e.g., murder, assault or false
imprisonment) and to justify the exercise of international jurisdiction that would otherwise be the subject of domestic
adjudication. For the drafters of the Nuremberg Judgment, the war nexus originally served this purpose. The ICTY
indeed devised an ingenuous solution to the problem of delimiting international jurisdiction and distinguishing crimes
against humanity from “ordinary” crimes: the Trial Chamber did not require proof of a substantial link between the
defendant's inhumane act and a state of war. Rather, the Chamber defined crimes against humanity in terms of the mens
rea of the defendant and the existence of a widespread or systematic attack against a civilian population. However, at
the same time, a Trial Chamber of the Tribunal added additional elements to the definition of crimes against humanity,
further complicating the definition and the Prosecution's burden of proof. The Appeals Chamber did overturn the Trial
Chamber’s decision in this regard in the Tadic case (INTERNATIONAL DECISION: Prosecutor V. Tadic (Judgement).
Case No. IT-94-1-A. 38 ILM 1518 (1999). International Criminal Tribunal for the Former Yugoslavia, Appeals
Chamber, July 15, 1999). During the drafting of the Statute for the permanent ICC, both the ICTY Statute and the work
of the Tribunal were used in drafting a consensus definition of crimes against humanity that will govern prosecutions
before the new permanent international court. In this latter case, the drafters of the Rome Statute defined crimes against
humanity with reference only to the existence of a widespread or systematic attack against a civilian population and
the mental state of the individual defendant. In so doing, they recognized that once abuse of civilians surpasses a
particular threshold, the prescriptions of international law are activated and individual perpetrators can be held
internationally liable for their acts of murder, assault, rape, or unlawful detention. As such, the principles guiding the
contemporary codification of international criminal law has shifted considerably since the Nuremberg Judgment.
Condemning injurious conduct and guaranteeing the accountability of individuals who subject others, including their
compatriots, to inhumane acts, have found adequate codification. However, this does not eliminate the politico-
normative concerns debated in the present work. See M. McAuliffe deGuzman, “The road from Rome: the developing
law of crimes against humanity” (2000) 22 Human Rights Quarterly 335.
offenses, there is a third normative perspective that envisions crimes against humanity as offenses
committed exclusively by state actors and, as such, the ethos of crimes against humanity emerges
as punishment for the misuse of state power to attack rather than to protect. If so, it is the misuse
and abuse of state power that renders these crimes non-justiciable in the domestic sphere, and the
likelihood they will go unpunished mandates the availability of international jurisdiction.
Proponents of this view promote the inclusion of a state policy element in the definition of crimes
against humanity. In other words, only inhumane acts dictated by a state policy to commit such
violence would merit designation as a crime against humanity. This vision relies heavily on a
historically descriptive point of view. At the same time, it also reflects an overreliance on a rigid
understanding of state sovereignty, especially concerning crimes perpetrated by regional alliances
and non-state actors intervening in a civil war situation or during a military occupation. While it is
true that domestic legal systems are generally unwilling or unable to prosecute either their own
state or non-state actors, it is far from clear that international courts could easily step in to remedy
the lacunae in adjudication of such crimes. In this regard, though the critique of state sovereignty
is the strongest normative standpoint for the justification for crimes against humanity legislation, it
falls short of identifying the political and institutional route required to try these cases in
nondomestic courts. This weakness is at least partially remedied by emphasis on the group harm
elements of the crimes against humanity legislation. This requires that the targeted group share
particular characteristics beyond the geographic proximity of its members, such as nationality, race,
religion, or ethnicity. This brings the normative basis of crimes against humanity legislation close
to the prohibition against genocide, although without the requirement of intent to destroy the group
in whole or in part. The focus on group-based harm undoubtedly captures one of the primary
features of crimes against humanity. Still, it lacks the large-scale and systemic attack component,
and thus is weakened in its coverage.
In summary, only a composite analysis of existing approaches would provide a complete rationale
and normative foundation for crimes against humanity legislation. Thus far, none of them is capable
of redefining the applicable nexus, due to their emphasis on select elements or aspects of these
crimes. No single vision of crimes against humanity has predominated in scholarship, law, or
jurisprudence. Instead, from the Nuremberg judgment onwards, various approaches continue to
compete for the provision of a solid basis for the adjudication of these crimes. The ILC has also
experimented with different rationales. The 1954 Draft Code adopted a combination of state action
and discrimination, while the 1991 Draft Code relied on seriousness, introducing the criteria of
“systematic” or “mass scale.” Finally, the 1996 Draft Code combined the seriousness and state
action requirements. All of the post-Nuremberg statutes pertaining to crimes against humanity have
carried forward inconsistencies in their justifications. The ICTY resurrected the nexus with armed
conflict; the ICTR required both seriousness and discrimination; the ICC injected a requirement of
state—or at least group—action; the Special Court for Sierra Leone (SCSL) relied almost
exclusively on seriousness; and the ECCC reinjected the element of discrimination. The resultant
lack of normative uniformity in the legislation has led to important doctrinal questions remaining
perpetually unresolved. The current state of affairs also clearly indicates the importance of the
politico-normative context of the adoption and usage of crimes against humanity legislation.
III. ADJUDICATION, RESPONSIBILITY AND THE LAW : LIMITS OF UNIVERSAL JURISDICTION
Since 1945, there have been myriad kinds of prosecutions for crimes against humanity. In
addition, charges for particular crimes against humanity are often brought in conjunction with
charges for particular war crimes in a given prosecution. The changing nexus within which these
prosecutions took place has already been discussed. In this section, this debate will be extended to
address another issue, that of collective responsibility. As already stated, under Article 7(2)(a) of
the ICC Statute, crimes against humanity require that a widespread or systematic attack on a civilian
population be committed “pursuant to or in furtherance of a State or organizational policy to commit
such attack.” Here, both the term state policy and the interpretation of the term “organization”
remain controversial. Normative and jurisprudential debates on the exact meanings of these terms
lead to varying conclusions. Now, if these terms were understood as reflecting the ordinary meaning
of the concept and including any association of persons with an established structure of political
authority, perhaps the dubiousness of their coverage would erode. What is it, then, that makes such
a wide and yet simple interpretation, associating responsibility with the state or state-like
organizations and people acting on their behalf, so cumbersome a task?
The missing link between the adjudication of crimes against humanity and a principled
acknowledgement of their defining relationship with the acts of the state or state-like political
authority harks back to the painful debate that emerged in the aftermath of the 1961 Eichmann trial
in Jerusalem. The Eichmann trial is part of a series of Holocaust-related trials widely known and
studied among Holocaust scholars, but which rarely enter into other debates on international
criminal law. Specifically, Holocaust scholars have come to employ the tripartite concept of
information, knowledge, and awareness for the determination of accountability based on the study
of these of trials. Their work maintains that an awareness gap exist between information flow, its
processing and interpretation into general knowledge, and the crystallization of the recognition of
the consequences of criminal actions. In many ways, these trials directly contributed to building a
consciousness about individual responsibility for state crimes. In this regard, in addition to the
Nuremberg Trial, the trials of Jewish functionaries during the Holocaust (otherwise known as the
Kapo trials), the Malkiel Gruenwald trial (otherwise known as the Kastner trial), and the Eichmann
trial are cornerstones of legally inclined Holocaust research. Insofar as the Holocaust was so
aberrant and unprecedented an event, these trials also set a formidable precedent for tracing the
complex paths that acts constituting crimes against humanity follow before they amount to mass
destruction.
Unlike the way that ICTY or ICTR are examined, however, these trials are generally
accepted as offering significant clues concerning the politico-normative underpinnings of crimes
against humanity adjudication. The Nuremberg trials (1945-1947), which took place during the
period immediately prior to the establishment of the state of Israel, were marked by the intensive
diplomatic and military struggle against the British for Jewish independence in Mandate Palestine
and the sanctification of national freedom. The "Kapo trials" and the Kastner trial (1948-1959)
occurred during the transition from a pre-state community (Yishuv) to sovereign statehood, and took
place under the circumstances of Israel’s War of Independence, mass immigration, and the building
of the new state’s legal, economic, and security infrastructure. At this time, Israeli jurors also crafted
the Law no. 64, "Nazi and Nazi Collaborators Punishment Law" (1950), designed to bring Nazis
and their proxies to justice through the quasi-legal practice of universal jurisdiction. The Eichmann
Trial (1960-1967) came after these two initial sets of trials; it received public attention at a time of
economic and political growth of the Israeli state and was used to make that state’s voice heard in
international law. Holocaust scholars are not at all reticent in stating that each of these trials
proceeded according to the national spirit and political environment of the times. Each trial was
also associated with a specific agenda: the Nuremberg trials reflected the Allies’ victory over Nazi
Germany, while the Kapo trials were an expression of the postwar mass immigration that put its
stamp on Israeli society. The political dimension of awareness of the Holocaust as an international
crime stood at the core of the Kastner trial. The Eichmann trial, on the other hand, focused on the
operative meaning of state sovereignty, the privatization of the Holocaust, and the place of crimes
against humanity in the wider context of World War II. In the post-Nuremberg era, we rarely
associate political agendas with courts, tribunals and trials working towards the adjudication of
crimes against humanity, but in the 1960s Holocaust scholars readily did so.
The remainder of this section will focus on the interpretation of crimes against humanity
during and in the aftermath of the Eichmann trial, and compare the context within which this debate
took place with the current obsession on the universality of the Rome Statute. According to
Hannah Arendt, men are not capable of forgiving what they cannot punish, nor are they capable of
adequately punishing what is unforgivable. Indeed, the most distinguishing feature of crimes
against humanity, in the form that they were articulated during the Eichmann trials, is their
imprescriptibility. The Arendtian claim concerning the impossibility of punishment in certain cases
such as crimes against humanity is a clear indicator of the limits of positive law. This is what Arendt
calls the “radical evil,” the inadequacy of existing sentences and punishment schemes in addressing
the damage caused, both because of the unprecedented nature of the crimes committed and due to
their extreme cruelty constituting an obstacle to the very idea of adequate punishment. According
to Arendt, during the Eichmann trial, the monstrous scale of the Nazi crimes made any punishment
provided for them inadequate and absurd. More specifically, in Personal Responsibility under
Dictatorship, Arendt stated that the horror of the Nazi crimes themselves, in their naked
monstrosity, transcended all moral categories and exploded existing standards of jurisdiction.
Hence she reached the conclusion that such crimes were neither adequately punishable nor suitable
for forgiveness. In the same text, she further claimed that, contrary to the statements made by the
Israeli courts, reasons such as the need for society to be protected against these kinds of crimes, the
rehabilitation of criminals, the dissuasive force of the example, or measures of retributive justice
would not bring a complete closure. Thus, our ordinary sense of justice does not suffice in the case
of crimes against humanity. In her later work, however, in particular in The Human Condition,
Arendt admitted a possible combination of forgiveness and punishment concerning crimes against
humanity. Still, she clearly stated that punishment is an alternative to forced forgiveness by the
dictates of history and not its opposite. Punishment and forgiveness have one crucial aim in
common: an attempt to put an end to something that without interference could lack closure and
repeat itself endlessly. Forgiveness is not alien to politico-normative judgment. In other words,
forgiveness could not be routinized, and it remains an exceptional act. Meanwhile, we make the
opposite claim for crimes against humanity legislation: it is meant to be the supreme example of
the regularization of international law and its universal codification.
To think more deeply about this seeming antinomy, it is necessary to consider the context
in which both the “globalization of forgiveness” and universal jurisdiction pertaining to crimes
against humanity emerged.303 Especially in the Global South, but also in the heart of what were
once the colonial empires, scenarios of repentance, confession and forgiveness have multiplied
since the end of the Second World War. The Catholic Church’s request for forgiveness for the
Second World War crimes, that of the Prime Minister of Japan to the Korean and Chinese, that of
the Belgian government for not having acted on the genocide in Rwanda, the Chilean armed forces’
confession of their crimes, and the Canadian prime minister’s apology to the Native Peoples of
Canada are just a few examples that were widely advertised in this avalanche of a desire for
forgiveness for crimes that cannot be punished. This proliferation of scenes of regret and requests
for forgiveness coincides with the renewed urgency of memorials, of selfaccusation, and of
repentance. It appears to be a symptom of a larger yearning for redemption. As such, forgiveness
and its solicitation are directly conditioned by the weight of guilt felt on the shoulders of the public.
What is worrisome about this trend is not so much that we choose to remember and to give account
for, but the simulacrum of healing that comes with repentance. This calculative aspect of public
apology is indeed troubling, considering the egregious nature of the crimes committed that
constitute the subject matter of historical apologies. Consequently, the general character of requests
for forgiveness could be paramount to collective guilt rather than collective responsibility. Perhaps
this is the point at which one re-embraces the strong reasoning for celebrating the legislation of
crimes against humanity in international law. This particular branch of criminal jurisprudence
emerges as the only chance for freeing societies from the repentance-redemption equation or its
opposite, the total denial of heinous and most egregious crimes. A publicly appointed body could
not forgive on behalf of either the direct victims of
303 D. Levy and Natan Sznaider, “Forgive and not forget: Reconciliation between forgiveness and resentment” Taking
wrongs seriously: Apologies and reconciliation (2006): 83-100, and R. Bernstein, ‘Derrida: The aporia of forgiveness?’
(2006) 13 Constellations 394.
egregious crimes or the public at large who suffered in relation to or as a result of such crimes. The
State, its institutions and courts cannot force wronged peoples to forgive simply because an apology
has been extended to them. Through the adjudication of crimes against humanity, on the other hand,
the culpable person(s) is punished for unforgivable acts, and yet without being redeemed. That is a
much stronger form of claiming responsibility for mass violence, rooted in politics, history and
normative grounds, than what forgiveness alone could provide.
CONCLUSION
Despite the universal jurisdiction clause attached to them, much like forgiveness crimes
against humanity have politico-normative foundations that determine the shape and content of their
adjudication. And much like foregiveness for mass societal and political crimes, crimes against
humanity legislation should not be normalized and become routine in international law. By the very
nature of the crimes it attends, this body of legislation must remain exceptional and extraordinary,
putting impossibility to the test, as if it interrupted the ordinary course of human temporality. Only
then it would assume the power to intercept the flow of events that sanctify egregious crimes. This
chapter opened with the question of what distinguishes crimes against humanity from other crimes.
The answer to this question cannot be determined solely on the basis of the jurisprudential
architecture of crimes against humanity legislation. Their distinct status has a deep connection with
Hannah Arendt’s narration of the “banality of evil” with reference to the Eichmann trials. More
than half a century ago, as Arendt witnessed the proceedings of the trial of Adolf Eichmann as one
of the major figures in the organization and conduct of the Holocaust, she coined two separate
terms: “radical evil” and the “banality of evil.” The latter term has since become something of a
legal and normative conundrum. Arendt certainly did not mean evil had become ordinary, or that
Eichmann and his Nazi cohorts had committed ordinary crimes. Rather, she was convinced that the
crimes committed were so exceptional, they demanded a new approach to legal judgment itself.
Concomitantly, she offered several challenges to traditional conceptions of legal judgment. The
first one was related to legal intention. The key question here is whether the courts had to prove
that Eichmann intended to commit genocide in order for him to be convicted of the crime. Eichmann
may well have lacked the required legal intention, insofar as he failed to even think about his acts
as constitutive of a crime. Though Eichmann acted in full conscious capacity and without being
affected by insanity, he lacked a mode of rationality that would yield intentionality. This observation
led Arendt to claim that although national socialism was capable of making individuals implement
policies that led to egregious crimes, it also equipped them with a cathartic state of assuming no
responsibility for their actions and attributing no intentionality to their involvement in the making
and sustenance of a criminal regime. In order to claim intentionality, one has to convey the capacity
or knowledge needed to think reflectively about the consequences of one’s willful actions. The
banality Arendt names thus corresponds to the inability to think and understand the weight of one’s
own actions as a legal/political being.
Arendt was not trying here to establish an exceptional case for Israel or the Jewish people.
Rather, she was trying to establish the backbone of a theory of crimes against humanity, one that
would acknowledge the destruction of not just Jews, but also Catholics, Gypsies, gay people,
communists, the disabled and the ill under the Nazi regime. In her thinking, the destruction and
displacement of these populations on a categorical basis was an attack not only on those specific
groups, but on humanity itself. As a result, Arendt objected to a specific nationstate such as Israel
conducting the trial of Eichmann exclusively in the name of its own population. She was cursed
and almost crucified for her interpretation of the crimes of the Nazis. And yet her interventions also
made it possible to talk about crimes against humanity above and beyond the Jewish case and the
Holocaust. As the history of crimes against humanity legislation proves, after the particular
historical juncture of the Eichmann trial it indeed became necessary to devise new structures of
international law that identify and propose punishment for crimes against humanity in a generic
sense. There is a critical aspect of Arendt’s observations of the Eichmann trial, however, that fell
aside in international jurisprudence. This aspect concerns the “banality” of such crimes, indicating
that they were committed in the midst of daily life and routines, without opposition to their conduct,
and without being named as a crime at the time that they were committed. In a sense, Arendt’s
calling a crime against humanity banal allows us to conceptualize the socially accepted, routinized
nature of these crimes which are committed mostly through policy enactments and, as such, without
moral revulsion, political indignation or resistance. Thus, her interpretation of crimes against
humanity calls for a new mode of political and legal reflection. Combined with the notion of radical
evil, this opposition between the radical nature of the crimes committed and the ordinariness that
their committal assumes invites us to rethink the almost mechanical reiteration of crimes against
humanity legislation in the post-Rome Statute era of international law.
Arendt was long blamed for trivializing the Holocaust and the Nazi crimes, as she was seen
as attributing them to the Nazis’ and their collaborators’ simple failure to think before they act. For
her, however, the degradation of thinking worked hand in hand with the systematic destruction of
populations. What drew the ire of Jews at the time against Arendt’s interpretation of the Eichmann
trials was also the fact that she showed the audacity to quarrel with the reasoning put forward at the
trial, and confronted the Israeli courts in terms of their legal reasoning and conduct, though not
their final verdict. She thought the trial needed to focus more on the acts that Eichmann committed,
acts that left an imprint on the whole of humanity, not only the millions of European Jews who
perished as a result. This is partly due to the fact that, similar to the legal philosopher Yosal Rogat
before her, Arendt did not think that anti-semitism in Germany could be tried in a courthouse. She
thus objected to the ways that Israel used the
Eichmann trial to establish and legitimate its own legal authority and national aspirations as a
Jewish state. She was severely displeased by the fact that Eichmann was made to stand for all of
anti-semitism and for every Nazi. In her view, this was far too simplistic an interpretation of who
Eichmann was and what he stood for. For Arendt, the Eichmann trial also necessitated a deep
critique of the idea of collective guilt, as well as a broader reflection on the historically specific
challenges to collective and moral responsibility under dictatorships and authoritarian rule.
Eichmann was guilty because he failed to take distance from the requirements that Nazi law and
policy imposed upon him in a legal order that was impeccably legitimate on paper. Thinking about
Eichmann in terms of his obedience, his lack of critical judgment despite his high status and rank,
and his failure to think about the results of his actions, is the lasting of Arendt’s struggles with the
Israeli courts at the time; and it is a very precious legacy indeed.
There remains, then, a question that, from the legal point of view, has provoked several
discussions and still lacks a definitive answer. It pertains to the politico-normative foundations of
the adjudication of egregious crimes such as crimes against humanity. The first time we heard of
acts that could be defined as crimes against humanity was 100 years ago, in 1915, when France,
Great Britain and Russia used this concept in a diplomatic note. They were considering issuing a
warning concerning the massacre of the Armenians at the hands of the Ottomans. The first legally
sanctioned instance of the adjudication of this category of crimes appeared at the Nuremberg trials,
set up to judge major Nazi criminals. At Nuremberg, it became a practical necessity to create a
special category of crimes that did not fit into the conduct commonly classified as war crimes. This
need to create a new framework was partly due to the fact that Germany’s persecution of its own
citizens could not be classified as a war crime. It is true that a country’s expulsion, deportation, and
mass murder of its own citizens was not unheard of in the history of war. However, the degree to
which these acts were orchestrated and publicly condoned by the German state constituted a unique
case. What was once considered unique, however, became a normalized category on its own,
expected to deliver a sense of closure for societal morass and collective responsibility. Thus, the
current normative framework that characterizes crimes against humanity as a frontal attack on
plurality and human diversity in effect became a pro forma acknowledgement of the conducts that
constitute crimes against humanity as part of the maintenance of the Westphalian system of
sovereign statehood. Addressing this issue requires a closer study of
the way that international law has played out in court and
litigation-based accountability measures systems, with a
particular emphasis on the Global South, which is the task
undertaken in the next chapter.
Chapter V. Through the Looking Glass: Hybrid Courts and International Criminal Law in the
Global South
INTRODUCTION
This chapter offers a critical analysis of a particular set of courts in international criminal
law, which have emerged since 1990s. This constitutes a continuation of the debate over the limits
of universal jurisdiction in the Global South that was covered in the first three chapters of the
present work. These are the third generation of international criminal bodies and they are commonly
known as hybrid courts. The term has been used to address at least three jurisdictions, all of which
were created between 1999 and 2001. They include the Crimes Panels of the District Court of Dili,
The “Regulation 64” Panels in the Courts of Kosovo and the Court for Sierra Leone. To this list,
one should also add the Extraordinary Chambers in the Courts of Cambodia, and the Extraordinary
African Union Chamber in the Court of Senegal. Most of the earlier hybrid courts have closed their
operations and thus it is possible to ascertain the outcomes of these trials. Indeed, there is significant
merit in examining the promise or potential benefits of hybrid tribunals and courts for the future of
international criminal law in the Global South as an alternative to the centrifugal model, which than
leads to severe limitations in terms of the application of the universal jurisdiction model concerning
crimes against humanity legislation. This chapter thus attempts to identify the distinct features of
hybrid courts while acknowledging the variation amongst those that have thus far been created. It
is true that literature in the field has moved away from analyzing or attempting to examine the
promise of hybrid courts. Current commentaries on existing hybrid tribunals or courts are more
inclined to examine specific issues or areas in the jurisprudence or statutes of hybrid courts. The
approach presented in this chapter differs in that it focuses on the general promise of the
mechanisms offered by hybrid courts as an important tool to be used for criminal adjudication in
the Global South. To this end, the discussion presented in the following pages is divided according
to three separate themes. These are: TWAIL [Third World Approaches to International Law]
scholarship and discussions surrounding the Global/ North/South dichotomy and its effect on
accountability; exploration of hybrid courts as viable mechanisms of criminal justice in cases of
state criminality; and the ICC and the principles of universal jurisdiction and complementarity.
Like preexisting international judicial bodies, such as the International Court of Justice or
the European Court of Human Rights, hybrid courts are composed of independent judges, working
on the basis of predetermined rules of procedure, and rendering binding decisions. They are subject
to the same principles governing the work of other international judiciaries, including but not
limited to due process, impartiality and independence. Within this wider class of international
courts, however, hybrid courts belong to a specific order. They are specialized criminal organs with
a limited mandate, and prescribed to fulfill their function with reference to a predetermined time
period. Meanwhile, although their goal is to sanction serious violations of international law, and in
particular international humanitarian law and human rights law, they are part of transitional justice
regimes rather than being an ongoing feature of the legal system in any of the given constituencies.
Similarly, although they impose criminal penalties, their primary obligation is to the state and
society within which they are situated, rather than addressing the international community. Akin to
the ICTY and the ICTR, but unlike the ICC, they are ad hoc institutions, created as the result of
singular political and historical circumstances. Still, similar to other international criminal
institutions, in order to carry out their mission hybrid courts need to rely on international
jurisprudence and judicial assistance from states and international organizations, although their
peculiar legal status gives an utmost priority to the bridging act of creating hybrid jurisprudence
which resonates with the national legal system. In some cases, they are part of the judiciary of a
given country, while in others they have been grafted onto the local judicial system through the
intermediary action of international bodies. One constant feature they exhibit, however, is that their
jurisdictional portfolio is mixed, incorporating international and national features. This chapter
argues that on the critical issues of criminal accountability and responsibility, hybrid courts exhibit
a unique promise for states and societies in the Global South.
The literature on international criminal law has already welcomed hybrid courts as a new
type of international crimes courts, asserting that they have the benefits, while avoiding the
drawbacks, of both purely international and purely domestic trials. A closer examination of current
examples of hybrid courts, however, in Kosovo, East Timor, Sierra Leone, Cambodia and Bosnia
and Herzegovina, reveals something else as well. Attributing a promise to hybrid courts as a fixed
category has raised false expectations, as each court has fundamental differences and distinct
features. I will argue that this variation is endemic to any genuine transitional justice project, and
should be welcomed rather than shunned. Hybrid domestic-international tribunals and courts offer
an important new angle to institutional approaches to international law and to transitional justice,
whose formulatation is often given by donor institutions in the Global North. The processes by
which societies provide accountability and reconciliation for mass atrocity in their own terms is
often overlooked. Hybrid courts are courts in which both the institution and the applicable law
consist of a blend of international and the domestic jurisprudence. In many cases, foreign judges
sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local
lawyers working with those from other countries. At the same time, the judges apply domestic law
that has been reformed to include international standards. Furthermore, these courts have developed
in an ad hoc way, the result of on-the-ground innovation rather than grand institutional design,
which carries the seed of a genuine political involvement from within. Typically, they have emerged
in post-conflict situations to address cases involving mass atrocity, usually where no politically
viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an
international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo or
Cambodia. Yet despite these features, they have often been marginalized as yet another failed
project of the Global South. The truth is more complicated, and worthy of real attention.
I. MAPPING RESPONSIBILITY FOR MASS ATROCITIES
Theories of transgovernmental and transnational networks, when applied to cross-border regulation
regimes in areas such as international finance, antitrust regulation, environmental protection, or
securities law, have steady purchase amongst international law scholars. One area to which this
type of theorization has not yet been fully applied, however, is international criminal law. Until
recently, international criminal law had not been conceptualized within the framework of the
transnational networks that have caught our attention in other legal fields. With few exceptions, the
predominant conception has been that international criminal law is enforced primarily through a
universalized idiom and with a top-down approach. However, as critical debates in the area of
human rights scholarship amply demonstrate, this picture is far from accurate. Human rights
lawyers, activists, and advocates as well as investigators, prosecutors, and judges dealing with
specific categories of crimes have long been acting in degrees of collaboration or consultation, with
their peers across borders and with their counterparts at other national or international courts and
regulatory bodies. In the following pages, some of these developments are evaluated in reference
to hybrid courts dealing with cases of mass atrocities.
Providing a conceptual framework within which transnational networks are not seen as an anomaly,
in the context of a nexus between international human rights law and international criminal law, is
essential in this regard. International human rights law, which in essence embodies a constant
mediation between claims about the core values of justice and dignity, on the one hand, and hard-
fought contingent politico-historical battles, on the other, is in particular need of a richer exchange
between the North and South. As amply illustrated by TWAIL [Third World Approaches to
International Law] scholarship, political geography has much to contribute to the critical study of
international law, above and beyond connecting rights discourse with particular contemporary
justice agendas. As TWAIL scholars declare, for instance, human rights struggles, even when they
are regarded as part of independence struggles, reveal a global gap of consistent practices of
violence, which necessitated current human rights practices in the first place. The ways that
responsibility for systemic and structural violence has been claimed, denied, ascribed, enacted, or
avoided have cartographical anchorage. The North takes the credit for creating discourse and
jurisprudence, while the South carries the burden of the heaviest violations and at the same time is
singled out as the worst violator. We need a new and more evocative lens for understanding the
place of human rights law and its variants, within a global framework of emancipatory politics. As
Vijay Prashad puts it ever so succinctly, “The Third World was not a place. It was a project.” TWAIL
scholarship both specifies and expands upon the sense in which Third World or Global South was
never a place per se. In the same spirit, in the following pages the Global South, as well as the
North-South divide, are treated as part of a grand political project of some elusive universal legal
order, which is subject to constant reinvention. Here, the emphasis will be put on alternative
lineages of the Global South, outside the realm of state-based narrations of post-colonial politics,
as explicated in the methodology section of the Introduction to this work. Indeed, it is essential to
foreground aspects of the NorthSouth divide that hinge upon the premise of intertwined regimes of
accumulation, regulation, culpability, and responsibility. Only then can we truly challenge the top-
down approach—the siren call of international human rights law and international criminal law in
the Global South— and offer something more palatable in its place, based on a transnational politics
of rights struggles, accountability for mass crimes, and substantive human emancipation.
A. More Than Each unto His Own -- Hybrid Courts in the Global South
This chapter singularly focuses on the distinctive characteristics of regional, sub-regional
and hybrid courts operating outside of Europe. Their operations clearly suggest that in terms of
universal jurisdiction and the application of international law, the Global South is not an unwilling
participant at best and an insignificant addendum at worst. Tailgating TWAIL scholarship, I
strongly argue otherwise, and the examples chosen here amply illuminate the reasons for insisting
upon alternative vantage point.
To begin with, there is a growing number of new international courts, tribunals, and
quasijudicial review bodies that exercise compulsory jurisdiction over states parties which are
located not only located in the North but also in the Global South. Secondly, established hybrid and
international tribunals, despite all their failings, trials and tribulations, have been steadily expanding
their authority over a wide range of legal actors, including but not limited to states. Many of these
courts owe their strength to their limited-subject-matter mandates and conscribed geographic and
chronological reache. Thus, the argument that the North subjects the Global South to neo-
colonialism via international criminal law is nullified to a large degree. The majority of these courts
and tribunals, in fact, attend to regional affairs and internal conflicts that entail massive human
rights violations. In other words, they constitute a new terrain for the establishment of fragmented
and yet reasonably operational accountability regimes in the Global South. There is, it’s true,
grounds for fear of a growing trend towards the judicialization of politics at a global scale in this
regard. We certainly cannot take it on faith that creating new international courts or hybrid tribunals
will necessarily provide solutions to deep-seated societal and political problems. Rather, the role of
law in various struggles for social and political justice in the Global South, some of which take are
waged against post-colonial states themselves by their own citizens, should be the focus here. The
case of hybrid courts signal the emergence of alternative forms of international law, ones which
call for new legal theories capable of capturing the potential of, and the tensions endemic to,
counter-hegemonic forms of globalization.
Although the legitimacy of domestic courts is no doubt more established than that of their
international or hybrid counterparts, the risks of depending solely on domestic adjudication at
historical junctions in relation to transition from civil war, ethnic cleansing, genocide, occupation,
etc. are far greater than resorting to divergent interpretations of international criminal law in these
settings. Furthermore, third-generation courts are often regional in scope and thus cover both states
and subterranean or non-state actors within their jurisdiction. This is yet another advantage they
have over domestic courts. They have the ability to contextualize a given conflict, a most urgent
need in the cases of mass political violence in Africa, the Balkans, or South East Asia. Equally
importantly, while traditional international courts have had shallow—i.e. optional— jurisdictional
powers, hybrid courts tend to have a much deeper jurisdictional basis that leads to compulsory
jurisdiction, since they act over a limited number of issues in conjunction with a set number of
parties.
Thus far, perhaps, international courts and hybrid tribunals have made only limited
contributions to the resolution of high-politics disputes. At the same time, concerning broader
trends in international adjudication, it is safe to suggest that based on the increasing number of
rulings produced by regional tribunals and hybrid courts in Africa, Latin America, and Eurasia,
there is an emerging litigation pattern that may be significantly different from those of international
or European courts. These rulings span a broad range of subjects, including customs, taxes, and
tariffs and non-tariff barriers to trade, as well as criminal proceedings. In these alternative settings
of international jurisdiction, national as well as international judges, administrative officials, and
private parties participate in litigation. The symbiotic relationship between international and
national law exemplified by these courts and tribunals also has a broader significance. Even when
(national) law proves moot, a distinctive group of sub-state actors including human rights
movements, NGOs, political movements, and judges, can serve as conduits to bypass the
indifference or even the resistance of governmental institutions to delivering justice where (though
rarely when) it is due. Alas, such is the nature of criminal law.
II. THE CLARION CALL OF DOMESTICATED UNIVERSAL JURISDICTION IN INTERNATIONAL
CRIMINAL LAW
One of the more recent and noteworthy episodes in international criminal law pertaining to
a rising demand for hybrid, as opposed to centralized, courts is the Darfur crisis. In July 2008, the
chief prosecutor of the International Criminal Court (ICC) in the Hague sought the indictment of
the Sudanese president, Omar al-Bashir, on charges of genocide and war crimes. 321 Subsequently,
foreign diplomats, regional leaders, and many Sudanese activists, including members of the
political opposition in the country, expressed divided opinions in their evaluation of this indictment.
It is true that some supported the idea of prosecuting President Bashir and his leading cadres for
the human catastrophe they are alleged to have inflicted on Sudan’s western province of Darfur.322
At the same time, a growing number of NGOs, political groups, and legal scholars in the Global
South were not comfortable with the indictment of a serving president by an international court
situated in Europe due to two factors: its neo-colonialist optics, and the indictment’s possible
negative effects on the Sudanese society. For instance, human rights circles
Business Laws in Africa, and the East African Community Court of Justice are some of the leading examples of
nonEuropean regional courts with a strong human rights-related track record of rulings.
321 For the text of the ICC indictment as well as the text of the April 2009 arrest warrant, please see the relevant
documents at http://www.icc-cpi.int/NR/exeres/0EF62173-05ED-403A-80C8-F15EE1D25BB3.htm [15.03.2017].
Specifically, the indictment indicates that the Sudanese President is suspected of being criminally responsible, as an
indirect co-perpetrator, for intentionally directing attacks against a selected part of the civilian population of Darfur,
Sudan, and, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and
pillaging their property. This is the first warrant of arrest issued for a sitting Head of State by the ICC.
322 For a general global survey regarding the perception of the indictment, see the IPS poll results published in
July 2009 at http://ipsnews.net/news.asp?idnews=47678 [15.03.2017]. The survey results indicate that the publics in
four majority Muslim and African nations, contrary to the positions of their governments, largely approved of the
indictment of President Bashir by the International Criminal Court. This is despite the fact that many fellow African
and Muslim leaders have supported Bashir and argued that the indictment was politically motivated.
repeatedly stated that a vindictive Bashir could resort to a number of violent strategies in response
to the ICC’s indictment, which could indeed make the situation in Sudan worse than before. They
argued that President Bashir’s repertoire of actions could include ending the already fragile peace
process in Darfur, expelling UN troops from the region, and retarding the implementation of a peace
agreement between his government and the former rebels in south Sudan. Differences in
interpretation persisted when in April 2010 President al-Bashir won Sudan's first multi-party
elections in 24 years, despite the fact that observers criticised the election as falling short of
international standards. Many opposition parties withdrew from the race, alleging widespread vote
rigging and intimidation.
In the light of the developments and concerns exemplified by the case of Sudan, it is timely
to ask whether a better mechanism of international criminal law could be envisaged to hold
individuals responsible for the type of atrocities perpetrated in Darfur, and elsewhere in the Global
South, without jeopardizing the safety of local populations or creating an aura of neocolonial moral
and legal superiority. This inquiry is linked with the larger question that runs through this entire
dissertation: how meaningful and beneficial is it for crimes against humanity to be subject to
universal jurisdiction if the local constituency, including the victims’ groups, rejects or disagrees
with the charges, methods of trial, or both? More specifically, what are the implications of trials
held in an international court, removed from the original locale where the crimes were committed,
rather than being deemed as an internal affair of the societies in question? In Sudan, for instance,
in response to significant worries about escalation of violence in the aftermath of the ICC
indictment against President al-Bashir, Sadıq al-Mahdi, the country’s most prominent opposition
politician, urged for a “third way” solution. Like many in human rights circles, he believed that an
ICC indictment of President Bashir would lead to further chaos in Sudan. He did not agree that
hauling the Sudanese president to the Hague would achieve much in terms of the crimes in Darfur.
Instead, he suggested setting up an independent “hybrid” court for Darfur, which would have both
Sudanese and international judges, and would sit in Sudan as opposed to Europe, the land of ex-
colonial powers. The idea of mixing national and international jurisprudence and legal procedures,
and of holding difficult trials for societal and international crimes on home turf, has already been
accepted in Sierra Leone and Cambodia, among others. It is true that these two examples have thus
far yielded only mixed success. Still, the overall prospect of hybrid courts possesses both legal and
political attractiveness. In the case of Sudan, for instance, a hybrid or “internationalized” court
could dispense justice close to the scene of the crime, and at the heart of the society directly affected
by the atrocities committed. Additionally, if such a special court were deemed to be a genuine,
impartial attempt to obtain justice, the ICC could defer its indictment of President Bashir under
Article 16 of the Rome Statute. Finally, a hybrid court with a strong domestic element would have
the strength to counter the furious denounciations of the ICC charges and indictments as a Western
imperialist plot against the Bashir government and its supporters.
Based on the understanding of these potential gains for transitional justice as a societal project with
a strong historical dimension, rather than a package of mechanized solutions, the remainder of this
chapter will examine past examples of hybrid courts, as relevant cases for emerging models of
transnational justice and for the dissemination of international criminal law jurisdiction in a genuine
fashion. The fragmented nature of the international legal regime of accountability—despite the
post-ICC solidification of the doctrine of universal jurisdiction for international crimes—is not
something to be shunned but a development to be embraced. The benefits of the limited application
of universal jurisdiction, as endorsed by the hybrid courts that have emerged under the guidance of
or in consultation with the ICC during the last decade, are yet to be explored. Legal literature has
already welcomed hybrid courts as a new type of international crimes courts, asserting that they
could avoid the drawbacks of purely international and purely domestic trials. Upon closer
examination of the recent examples of hybrid courts in Kosovo, East Timor, Sierra Leone,
Cambodia, and Bosnia and Herzegovina, it becomes clear, however, that the current set of hybrid
courts differ from one another in critical respects. To attribute promise to the category of hybrid
courts as a whole may be to raise false expectations. A more realistic approach to major new
developments in international criminal law, such as the idea of universal jurisdiction with reference
to select categories of crimes, may be to evaluate hybrid courts as part of a large continuum of
fragmented practices, which include truth and reconciliation commissions, local adaptations of the
Rome Statute, and expansive application of human rights mechanisms to improve general standards
of societal responsibility in the event of mass crimes. There is no doubt that hybrid mechanisms
blending international and domestic elements have the capacity to deliver improved justice
measures—especially when they are undertaken via local judicial reforms, thus initiating a process
of serious commitment to legal accountability for war crimes and crimes against humanity in post-
atrocity states.
Furthermore, at the institutional level, the claim of universal jurisdiction put forward by the
ICC has severe limitations. To begin with, many crimes currently ailing post-conflict societies
cannot be tried by the ICC, since conflicts which occurred before the Rome Statute went into effect,
or ongoing conflicts in non-signatory nations, lie beyond the jurisdiction of the Court. Secondly,
even when the ICC has jurisdiction over a set of crimes, its mandate is primarily limited to calling
for the involvement of a handful of senior figures. In other words, societal responsibility is not
within the reach or the mandate of the Court with reference to the overall process of transitional
justice. Last but not the least, the ICC has thus far entertained a binary approach to societal crimes,
either providing wholly international justice or leaving the conflict to local post-atrocity courts, an
approach that often goes against ensuring genuine accountability. In the light of these concerns, a
closer look into the promise of a fragmented embrace of universal jurisdiction in the form of hybrid
courts, and what they entail for both the current project of international criminal law, must be
synchronized with a tally of local endeavours for transitional justice and societal accountability for
mass atrocities. Going back to the case of Sudan, on 13 October 2016 the African Union
Commission (AUC) launched a campaign to “restore the dignity of women and to ensure
accountability in South Sudan.” This campaign was intended to lobby for accountability and an end
to the atrocities that have disproportionately affected women in South Sudan. It was organized in
solidarity with the women of South Sudan, and spearheaded by the AU Special Envoy on Women,
Peace, and Security in Addis Ababa. The outcomes of the campaign were to be presented to high-
ranking South Sudanese officials. While accountability has been touted as a key element for peace
and reconciliation in South Sudan, it remains to be seen whether the envisaged hybrid court for
South Sudan would be able to try sitting leaders and senior government officials who had
involvements with the atrocities in the country. Human rights reports on the South Sudanese conflict
consistently point out that the country’s leaders bear responsibility for the war crimes and crimes
against humanity perpetrated in the country, and have in fact benefited from these offenses. Thus
any real effort to ensure accountability in South Sudan needs to engage the role of the South
Sudanese leaders. Efforts continue at the legal affairs department of the AUC to mobilize funds and
finalize the memorandum of understanding (MoU) for the establishment of the hybrid court. This
is in line with the Agreement on the
Resolution of the Conflict in the Republic of South Sudan, signed by former vice-president Riek
Machar and President Salva Kiir.334 According to the peace agreement and the MoU, the mandate
and the jurisdiction of the proposed hybrid court should have been finalized within six months of
the formation of the government of national unity, which took place in April 2016. The hybrid court
was to be operational within 12 months of that date, April 2017. However, the ongoing violence,
and the replacement of Machar with Taban Deng Gai as vice president of the government of national
unity, are stalling this process, and attention is instead focused on ending the most recent crisis. As
it is, the authorities refuse to execute arrest warrants issued by the International Criminal Court
(ICC). The security and humanitarian situation in Darfur, Blue Nile, and South Kordofan states
remains dire, with widespread violations of international humanitarian and human rights law.
Furthermore, evidence points to the use of chemical weapons by government forces in Darfur. The
rights to freedom of expression, association and peaceful assembly are repeatedly and arbitrarily
restricted and critics and suspected opponents of the government have been regularly subjected to
arbitrary arrest, detention and other violations. These “internal hindrances” aside, a crucial question
remains: will the AU Assembly of heads of state and government—its highest decision-making
body—draw up legislation for a hybrid court that enables it to try leaders and senior government
officials? For instance, Chapter 5 of the peace agreement stipulates that the hybrid court “shall not
be impeded or constrained by any statutes of limitations or the granting of pardons, immunities or
amnesties. No one shall be exempt from criminal responsibility on account of their official capacity
as a government official, an elected official or claiming the defense of superior orders.”335
Meanwhile, the AU remains in favor of immunity for sitting heads of state and senior government
officials. This development came after
Human Rights Council Report on Sudan at
http://www.ohchr.org/EN/HRBodies/HRC/CoHSouthSudan/Pages/Index.aspx [15.03.2017] and Amnesty
International Report on Sudan at https://www.amnesty.org/en/countries/africa/sudan/report-sudan/ [15.03.2017].
334 For the full text of the Agreement signed on 17 August 2015, see
https://unmiss.unmissions.org/sites/default/files/final_proposed_compromise_agreement_for_south_sudan_conflict.p
df [15.03.2017].
335 Also see the legal opinion expressed in the Office for Democratic Institutions and Human Rights document
on the issue at http://www.osce.org/odihr/elections/tunisia/247346?download=true [15.03.2017]
the ICC’s issuance of an arrest warrant for President Omar Al Bashir of Sudan in 2009. The AU’s
new immunity stance led to the inclusion of an immunity clause in Article 46A of the 2014 Protocol
on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights.
In effect, prior to the Sudan issue, the AU has fought desperately, in the case of Kenya and
Sudan, for the lifting of ICC charges against leaders in office. The AU also recently called for an
inquiry into a collective withdrawal from the ICC based on the differences over immunity concerns
in Africa. To date, Burundi, South Africa and The Gambia have already announced their withdrawal
from the ICC. The dilemma is that, according to the peace deal, the same leaders who would have
to be tried by the hybrid court are meant to occupy leadership positions in the transitional
government of national unity. The South Sudanese deal keeps South Sudanese leaders in the
positions they occupied before the war started. The dynamics among the member states of the
Intergovernmental Authority on Development (IGAD), who are mediating in the South Sudan
conflict, indicates that the question of leadership accountability is a contested issue. Hence, there
is not enough regional support for the issue to deter South Sudanese leaders from orchestrating
further violent atrocities. The hybrid court for South Sudan could thus end up prosecuting lesser
officials and soldiers of both Kiir and Machar factions. Due to these concerns, some observers
attending the issue of accountability in South Sudan have recommended that an alternative
international body should provide the necessary checks and balances. Others have recommended
that the South Sudanese leaders should be bound through the peace agreement to ratify the Rome
Statute, thereby enabling the ICC to intervene if they attempt to undermine the efforts of the hybrid
court—though no doubt given the present climate this is one of the most unrealistic solutions
proposed. Although the peace agreement is vague about the role of the transitional government in
the workings of the hybrid court, Chapter 5(1.1) of the agreement states that the transitional
government “shall initiate legislation for the establishment of the transitional justice institutions,”
and Chapter 5(1.5) expects the hybrid court to cooperate with the AU and the international
community in its operationalization. This gives the transitional government some leverage to
influence the establishment and mandate of the hybrid court from the outset. In the end, the liability
of South Sudanese leaders for the heinous atrocities and human rights abuses in the country rests
on the balance of societal pressure and political negotiations, and not just on the form or legislative
intent of the proposed hybrid court per se. Neither could these dynamics be reversed or undone by
the sheer presence of ICC indictments. In the case of mass political violence, (criminal) law and
politics go hand in hand to introduce change, rather than the former leading the latter in providing
solutions and rectificatory and restitutive justice.
A. The ICC and Domestic Applications of the Rome Statute
Overall, this chapter purports that the establishment of the ICC by no means lessened the need for
regional, lesser, or hybrid courts. Instead, it argues for an increased appreciation of the fragmented
nature of international criminal law as an accountability regime. Even in treaty terms, pursuant to
Article 11 of the Rome Statute, the ICC has jurisdiction only with respect to crimes committed after
the Treaty came into force in 2002. Consequently, there is a marked judicial vacuum concerning
crimes identified by the Rome Statute as subject to universal jurisdiction in the period prior to ICC’s
establishment, as well as regarding countries that are not signatories. With reference to these
limitations, hybrid forms of endorsing international legal accountability have become the focal
point of a growing number of discussions on the ICC. Those who support hybrid courts’ functioning
in tandem with the Rome Statute argue that national/municipal courts and the ICC constitute “two
layers of judicial institutions” that can cooperate in bringing perpetrators of international crimes to
justice. This state of heightened expectation from multilevel judicial dialogue is partly due to the
fact that the question of the limited potential of the ICC to affect the international criminal justice
system, and more specifically to sustain an international legal regime of accountability as the
leading institution, remains unanswered. In reality, the ICC is a carefully constrained legal
institution in its structure and reach, despite the fact that it relies on universal jurisdiction for the
crimes falling under its purview. Not only is the jurisdiction of the court limited, as exemplified by
discussions of the above-cited Article 11. The Rome Statute also requires that either the state where
the crimes have occurred, or the state of which the accused is a national, must be a party to the
Statute. Crimes committed on the territory of a non-consenting or non-party State by the nationals
of a non-consenting or non-party State may not be prosecuted before the ICC, unless the case is
referred to the Court by the Security Council of the United Nations. This is a current problem
clouding the prospects of, for instance, those who wish to bring the case of Israeli war crimes in
Gaza to the Court’s attention. The limitations that come with a territorial or nationality-based nexus
to the crime in question could be overcome only to a certain extent through the exercise of universal
jurisdiction by states that are a party to the Rome Statute. For universal jurisdiction to take effect,
these stateparties must be willing to try the case in their own courts in accordance with international
criminal law as embedded in their national legal systems. Again in the Israeli case, so far only
Belgian courts have expressed a willingness to consider a trial at a future date. Added to these
constraints are the complexities of the complementarity principle, as well as limitations regarding
subject-matter jurisdiction and the parliamentary overview of critical judicial matters, as
exemplified by the final decision concerning the Pinochet extradition case in the United Kingdom.
Given all this, what does universal jurisdiction [re]defined by the Rome Statute of the ICC
add to the already existing regime of accountability in international criminal law? The core idea of
universal jurisdiction is that some crimes are so heinous that they lead to a duty, in every society
and in every system of substantive law, to prosecute the perpetrators when the opportunity arises.
The very category of “crimes against humanity” captures this notion at its best: it refers to criminal
acts that constitute an offense to every human being, and a corresponding obligation to take action
against the perpetrator(s) regardless of the specific circumstances of the crime or limitations to
jurisdiction.347 Although the concept of crimes against humanity had specific roots as one of the
key justifications for the Nuremberg trials of Second World War criminals from 1945 to 1949, it
came into much more common use after the collapse of dictatorships in Latin America during the
1980s.348
Here attention should be turned to transitional justice measures and their relationship to
accountability regimes in international criminal law. The overall aim of transitional justice projects
is to end impunity deriving from official or personal exceptions accorded to state representatives
and high-ranking officers, and to guarantee personal accountability for gross human rights abuses
and societal crimes. In this vein, for instance, the impetus behind the reactivation of the legal
category of crimes against humanity against Latin American dictatorships was the hope that
universal jurisdiction in relation to these crimes would help to bring torturers and murderers to
justice when national jurisdictions were failing to try them. Another pertinent reason for the call for
universal jurisdiction in the case of crimes against humanity is that many deposed oppressors have
sought amnesty outside of their own country and claimed asylum on neutral grounds. By removing
the territorial nexus of the crime, it was hoped that universal jurisdiction litigation would allow for
the capture of fugitive statesmen, army officers, and former dictators. In summary, universal
jurisdiction for international crimes would, at least in principle, obligate governments to prosecute
the perpetrators of a certain set of crimes wherever they were found. While the government of the
country where the atrocities occurred might be severely compromised to prosecute these persons,
the idea is that another government without a history of complicity in these crimes could reach out
and punish the concerned criminals based on the principle of universal jurisdiction. As early as
1999, the very date that marks the formulation of the ICC jurisprudence on crimes against humanity,
Amnesty International reported that twenty-four national jurisdictions had adopted universal
jurisdiction for serious international crimes such as genocide, among them Spain and Belgium.
Since then, however, there have been very few prosecutions. Perhaps as to be expected, the most
notable case was in Britain and Spain against the Chilean ex-dictator Augusto Pinochet, prior to the
establishment of the International Criminal Court (ICC) in 2002. The success of this particular
rendition of universal jurisdiction, however, remains far from obvious.
The Pinochet case is of interest for understanding both the internal and institutional limitations of
universal jurisdiction as endorsed by the ICC. As far as the ICC is concerned, the claim in its
statute that the Court's jurisdiction is “complementary” to that of the nations that endorse it
emphasizes its underlying purpose: to drive societies to prosecute criminals in the places where
the crimes were committed, or in countries which are signatories to the Rome Statue, but not at
the Hague itself. In this sense, the Court supplements rather than dictates universal jurisdiction. It
is constituted as a transnational tribunal to try only a select set of international crimes when all
else fails. If it is to provide outreach services or to act as a centrifugal force, this should take
place at the level of jurisprudential framing provided by the Rome Statute, rather than in the
actual proceedings of the court. A legitimate question that needs to be answered in the context of
the Pinochet case, for instance, is the following: if Chile, currently a democratic state peopled by
many of the victims of Pinochet's regime, did not want to prosecute the ex-dictator in 1998, on
what basis could a magistrate in Spain interfere in Chile’s internal affairs or past crimes
committed by its state officers? Furthermore, when a Spanish court claims to exercise universal
jurisdiction over Pinochet’s crimes, how could Britain refuse to honour Spain's request for
extradition, despite the fact that Britain herself is a signatory to the Rome Statute and a dedicated
state-party to the ICC? In this regard, the internal and historical facts of the Pinochet case allow
us to examine a different and mostly overseas dimension of the universal jurisdiction debate.
Chile granted amnesty to Pinochet as a way to break his grip on local politics and to return to
democratic governance. Still, this should not have shielded the retired General from justice for
his gross human rights violations, and specifically the crimes against humanity associated with
his regime. The only reasonable explanation for this local lapse of justice is that Chilean
prosecutors and investigating magistrates, while enjoying institutional independence, were bound
to operate within the strictures of Chilean law and politics. These legal authorities had to answer
to appeals courts and to other officials, and they had to honour statutory obligations, one of which
is stated as the immunity of General Pinochet in perpetuity. A legal authority outside Chile may
not claim to have a direct interest in the affairs of the nation where the crime occurred. And yet,
under the principle of universal jurisdiction, they would have the freedom to indict and to
prosecute. This paradox repeats itself in African and other cases as well.
A more recent example that further illustrates the pros and cons of universal jurisdiction
exercised by foreign courts taking on cases pertaining to international crimes, rather than the issue
being referred to the ICC, is the case of Belgium and the investigation it launched against Israel’s
military offensives in Gaza and Lebanon during the last few decades.352 Human rights groups hailed
the Belgian Supreme Court’s decision as another stepping stone for international justice, following
the path heralded by the arrest of the former Chilean dictator Augusto Pinochet in Great Britain on
a Spanish warrant. The high-profile Sharon case complemented the 1993 Belgian universal
jurisdiction law, which permits lawsuits to be filed in Belgian courts for war crimes, crimes against
humanity, torture, and genocide regardless of the time and place of the crimes committed and
regardless of any national or geographical link to Belgium by the plaintiffs or the accused. This is
despite the fact that the Belgian law had to go through a series of
352 See the Haaretz article, dated October 31st, 2009 on the developments regarding the relations between Israel and
Belgium on this issue. On October 30th, 2009, the Belgian Supreme Court ruled that Defense Ministry directorgeneral
Amos Yaron could be prosecuted for his involvement in the Sabra and Shatila massacres in 1982 in Beirut, when he
was commander of the IDF forces in the Lebanese capital at the time. The court also ruled that Prime Minister Ariel
Sharon can be put on trial for his alleged involvement in the affair, but only after he ceases to be prime minister, when
he no longer has diplomatic immunity. Back in 2001, two separate claims against Mr Sharon were brought under a
1993 Belgian law which allows war crimes and genocide to be tried in Belgium, even if the events took place elsewhere,
and even if none of the victims was Belgian. The first case, charging Mr Sharon with responsibility for the deaths, was
lodged by a group of Palestinians, Lebanese, Moroccans and Belgians. The second suit for alleged crimes of crimes
against humanity, genocide and war crimes was filed by 23 survivors of the massacres and five eyewitnesses. Initially,
in 2002, the Belgian appeals court ruled on June 26 that the law was not applicable in Sharon’s case because the accused
was not on Belgian territory. However, the later verdict reversed that decision. Palestinian Authority Chairman Yasser
Arafat was also in line for prosecution in Belgium, in the wake of complaints filed against him by Israeli terror victims.
On December 10, 2008, a formal complaint was filed against Ehud Barak to the ICC, on suspicion of war crimes and
crimes against humanity because of the siege of Gaza." For full details of both complaints, see
http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=262391&contrassID=2&subContrassID=1&sbSubContra
ssID=0&listSrc=Y [15.03.2017].
amendments. The specific case against Sharon was brought by a group of Lebanese citizens, who
charged him with war crimes in connection to his indirect role in the 1982 massacre of at least 800
Palestinians by Phalangist troops in the Sabra and Shatila refugee camps outside Beirut, while the
camps were under Israeli control. Sharon was found “indirectly responsible” for the massacre by
an Israeli judicial commission in 1983, and was barred for a time from holding high office in Israel.
In 2002, a Belgian appeals court ruled that Sharon could not be tried in Belgium because he was
not physically present in the country; the Belgian Supreme Court reversed that ruling in 2003. This
latter decision acknowledged diplomatic immunity only for serving heads of state or ministers.
Based on this nuanced reading of immunity, Belgian prosecutors could open proceedings against
other Israelis allegedly involved in the massacre, including former Israeli army chief of staff Rafael
Eitan and current Defense Ministry Director General Amos Yaron, who was the Israeli army
commander in Beirut at the time. Consequently, in addition to the possibility of arrest on Belgian
soil, Israeli officials became worried about possible extradition demands from other European
states. Israel has extradition treaties with most European countries, and all members of the
European Union have conventions requiring that an extradition request by a member state is be
considered by others.
The plot thickened in January 2017, A Belgian court ordered the arrest of former Israeli
Minister of Foreign Affairs, Tzipi Livni, when she disembarked the plane on her upcoming
scheduled trip to Belgium. Livni is accused of committing war crimes and crimes against humanity
during her time as Minister of Foreign Affairs from 2006-2009. She oversaw the Israeli military
operation "Cast Lead" in the Gaza Strip, from which the crimes allegedly stem. In effect, Livni was
one of several Israeli officials named in the lawsuit filed by a group of victims in 2010 in response
to the military activities in Gaza. Livni, who is a member of the Israeli parliament, was set to meet
with Jewish leaders in Brussels, but canceled the trip before the report of the arrest order came out.
Back in 2010, Livni had been set to speak at the Jewish National Fund Vision 2010 conference in
London, but again cancelled her travel plans after a British court issued an arrest warrant for her.
In 2011, however, the UK announced that Livni would enjoy diplomatic immunity. The practice of
giving immunity to foreign officials who are accused of serious crimes under international law, in
order for the host country to avoid having to arrest them, readily receives criticism. Proponents of
the warrants argue that countries giving immunity to these officials are not living up to their
responsibility under international law, and are thus complicit in creating impunity for international
crimes. Belgium and the UK are not the only countries to have enshrined elements of universal
jurisdiction in their laws during the process of ratifying the Rome Statute. With Spain and Canada
coming on board, the endorsement of the Rome Statute moved to the far end of the spectrum in
terms of domestic law’s engagement with international criminal law according to the principle of
universal jurisdiction. Other notable countries opting for institutionalizing universal jurisdiction as
defined by the Rome Statute include Australia, Germany, New Zealand, and South Africa, all of
which have amended their laws to provide for the opening of investigations without any of the
traditional nexus requirements.
Situated at the other end of this spectrum, where rejection of “international jurisprudential
intervention” constitutes the distinguishing feature of thedomestic judicial order, are the United
States and Israel. Still, even these states have legal mechanisms that allow foreign acts to be
prosecuted in their courts. For instance, the Alien Torts Act allows foreigners to sue in United
States Federal Court if acts were committed against them in violation of the law of nations or an
American treaty. This act was used by a group of Bosnians against Serb leader Radovan Karadzic
for crimes committed in the Balkans. Similarly, in Israel, the Knesset passed an amendment to the
Penal Code in 1995 that is almost identical to Belgium’s 1993 law. Israel also passed legislation
making it responsible for the protection of every Jew around the world, whether or not such
protection is requested. According to this law, anyone committing a crime against a Jew anywhere
in the world breaks Israeli law and is liable to punishment by the Jewish state. In this sense, it would
be apt to suggest that Israel herself has long been a pioneer among nations in forcefully applying
universal jurisdiction, though only in select areas.
Based on the two examples of the Pinochet case and the Belgian law for universal
jurisdiction, it is apt to suggest that the key question concerning the limits of universal jurisdiction
is whether the problems that are appearing in its current applications in national and international
courts are likely to weaken its usefulness or legitimacy. In this context, some argue that hybrid
courts established closer to the scene of the crime and in direct contact with the societies involved
could be more effective in delivering universal justice for international crimes. Where the scope of
a state’s application of universal jurisdiction is wide, as seen in Belgium for instance, the problems
may indeed increase in some areas. As a case in point, in 2000 Belgium sought to extradite the
Congolese Minister of Foreign Affairs for speeches that allegedly incited to race-hatred in the
Congo. Given Belgium's troubled history of colonial engagement in the Congo, such a complaint
opened the country to a charge of neo-colonialism. In response, the International Court of Justice
(ICJ) stepped in and declared that an incumbent minister of foreign affairs was immune from
Belgian criminal proceedings. The principal problem in this case was less with the process of filing
and administering complaints than with its political character. In contemporary international
criminal law, the majority of the states that ratified and embedded the Rome Statute into their
constitution and/or criminal law are excolonial powers. Complicating matters further, the majority
of the cases that fall under universal jurisdiction take place in the Global South, and therefore in
ex-colonies. This brings forth the critical issue of trust, and opens domestic courts such as the
Belgian courts to charges of neocolonial domination of the Global South through the means of
international criminal law, and via the premise of universal jurisdiction.
There is another concern, too, when domestic courts take on international criminal cases
above and beyond the traditional nexus requirements. They tend to act as a magnet for complaints,
regardless of their merit, leading to arguments that both the claims and the resultant complaints
against the claims are rooted in regional or global political vendettas. On the other hand,
international power politics tend to narrow jurisdiction and to cut off complaints, as in the case of
claims made against Israel. This latter situation then leads to the argument that when domestic
courts exercise universal jurisdiction concerning cases that affect other societies, meritorious
complaints could be stifled due to extraneous issues not germane to the case itself. Domestic
criminal jurisdiction, where it embraces universal jurisdiction, aspires to be free of politics and
discrimination. However, it is also true that, since the Second World War, interest in universal
jurisdiction has grown partly because of the biases in and failures of domestic jurisdiction.
International criminal jurisdiction, for all its shortcomings, has been compensating for the failures
of the domestic courts. If this is so, how could we rely on domestic courts to deliver justice based
on the principles of universal jurisdiction? Is the solution simply a matter of someone else’s
domestic courts doing the difficult work? If high-ranking Israeli soldiers and leaders could not be
tried in Israel, is their trial in Belgium the ultimate solution to the suspicion and accusation of war
crimes, for instance?
The answer to the question of the pros and cons of universal jurisdiction exercised by organs
other than international or transnational courts is two-fold. By virtue of being complementary to
the domestic system, the workings of international criminal justice organs such as the ICC could
create a dialogue, however limited, that in turn would increase the possibility of establishing of a
legal regime of accountability for international crimes. In the Pinochet case, the British authorities
managed to avoid his extradition based on the defendant's alleged illness. However, the British
courts also recognized that his crimes were heinous enough to support extradition to Spain where
he would have had to stand trial. That development alone could be considered a key element that
has driven Chilean courts to undertake their own case against Pinochet, despite the many internal
obstacles leading them to avoid this for decades. This has been pinpointed by legal scholars such
as Stephen Ratner as the “democratizing effect” of international law, despite the fact that
international law itself may not qualify as a democratic edifice in its origins. The second point to
be made is that unless and until we accept international accountability regimes such as international
human rights law or international criminal law as fragmented regimes composed of variant
elements, rather than centre-heavy and fixed structures, we will continue to have far too many (and
often unrealistic) expectations from organs such as the ICC. This could in turn create effects to the
detriment of the very regime we purport to uphold, as these courts and their proceedings often
reflect power dynamics in global politics that in turn render their reach uneven, and sometimes
problem-laden. This is in addition to the fact that, unlike the ICJ for instance, ICC is defined as a
court of last and not first resort.
In the remainder of this section, the critical role of the complementarity principle as a
defining feature of the post-ICC regime of accountability for international crimes will be examined.
Select cases of hybrid courts will also be brought into the picture, to determine the degree of their
contribution to international criminal law in terms of the expansion of universal jurisdiction,
especially in the context of transitional justice. The goal of this exercise is to determine the
relationship between international, domestic, and hybrid courts, and to revisit the idea of the
fragmented nature of international criminal law as an accountability regime in terms of its future
promise.
B. The ICC and the Importance of the Complementarity Principle for the International Legal
Regime of Accountability
The basic stated objective of the establishment of a permanent international criminal court
was to replace a culture of impunity for the commission of very serious crimes with an international
legal regime of accountability. To this end, the provisions of the Rome Statute expressly address a
specific set of crimes—i.e. genocide, war crimes, crimes against humanity, and the crime of
aggression—as indictable crimes. Prior to the founding of the ICC, there were numerous other
tribunals with an international mandate. However, bodies such as the ad hoc Tribunals for Former
Yugoslavia and Rwanda were necessarily limited in scope, due to their context-specific and time-
sensitive characteristics. To a certain degree, the idea of a permanent court was also a response to
the UN Security Council's monopoly on international tribunals, which many states in the Global
South deemed as being far too selective in “distributing” international justice. Still, there is an
ongoing argument about the deterrent effect of international tribunals or courts in general, whether
permanent or ad hoc in their constitution. There is also the much larger question of what universal
justice means for different societies, and whether some are treated “more equal” than others within
its reach, especially under the purview of Europe-based international courts such as the ICC. The
common response to the establishment of the ICC emanating from scholars and practitioners of
international law is that the effectiveness of such international tribunals and courts must be judged
within a long-term perspective. Accordingly, the impact of these relatively new bodies cannot fairly
be compared to that of longstanding institutions such as the Security Council or the ICJ.
Specifically, the ICC is seen as part of a framework of measures brought into effect in order to
establish and sustain a new international regime of accountability, including increased domestic
prosecution of such crimes, the greater and wider use of common jurisdiction, and greater
international and transnational cooperation and coordination in the addressing of international
crimes.
The cornerstone of this anticipated legal regime is the principle of complementarity, as
reflected in Articles 18 and 19 (containing procedures) and Articles 17 and 20 (containing the
substantive criteria) of the Rome Statute.367 This principle was agreed upon as a result of long
negotiations. It was put in place to ensure that “State Parties” will always have primacy if they
choose to investigate and prosecute crimes within domestic jurisdiction or in accordance with the
jurisdiction of the Court. Accordingly, it is only where States are unwilling or unable to act within
the meaning of the Statute, or where they are simply inactive, that the ICC will take on a case.
Moreover, if a State has started proceedings, the ICC will only be able to take on the case if it is
shown that domestic authorities acted with an intention to shield the person(s) concerned from
justice, or in a manner that was inconsistent with the intent to bring the person(s) concerned to
justice. Without such a finding, lack of observance of international standards of due process or
differences in sentencing practices does not constitute a valid reason for ICC to step in. At the same
time, there are complementarity provisions to guide national authorities towards incorporating the
Rome Statute definitions of genocide, crimes against humanity, and war crimes into their domestic
law. As such, the primacy of State Parties for investigation and trial purposes does not go against
the principle of universal jurisdiction and the demand for the faithful adoption of its current legal
articulations by the Rome Statute. On the contrary, the complementarity principle reflects the belief
that universal jurisdiction is best achieved through a multi-level and complex model of
jurisprudential expansion that links international and domestic spheres. Meanwhile, it is important
to note that this still remains a centrifugal model; the ICC acts as the epicenter, and produces the
blueprint to be appropriated wherever a certain set of international crimes are concerned. Both State
and non-State Parties are expected to adopt the principles and format of codification developed by
the Court, in order to make a legitimate claim that their legal regime is on par with the international-
cum-transnational one in this specific area of criminal law.
In this context, the “proper implementation” of the Rome Statute within the national law of
States Parties is of key importance for the establishment and sustenance of a legal regime of
accountability. This is in addition to the required cooperation between the ICC and affected States
Parties in the investigation and preparation of cases, as outlined by the elaborate machinery set out
in Part 9 of the Statute. Indeed, there is a set of specific stipulations put in place to ensure the desired
coordination for investigation and adjudication purposes. First, States Parties are under an
unequivocal obligation to cooperate fully with the Court (Article 86) and to modify national law as
necessary to allow the forms of cooperation required by the Statute (Article 88). States Parties are
also obliged to arrest and surrender suspects to the Court (Article 89), and to provide other forms
of cooperation as requested, such as the questioning of witnesses, the conduct of searches and
seizure of evidence, the protection of witnesses, and the tracing, freezing, and seizure of assets
related to the crimes under investigation (Article 93). The grounds allowed for refusing cooperation
are extremely limited. States Parties cannot refuse to extradite their own nationals, and immunities
available under national law cannot be used to refuse to hand over one’s own nationals to the Court.
Notwithstanding these precautionary mechanisms, suffice it to say that national security concerns
can always provide a limited basis for refusal to cooperate, provided all the consultation measures
set out in Article 72 of the Statute are undertaken. It is in this larger context of complementarity
that ICC and the Rome Statute function as guideposts for the exercise of universal jurisdiction. No
doubt the domestic jurisprudence of a State Party to the ICC provides the critical mass of laws and
principles specifically designed to govern and protect its people and its borders. However, the
majority of recent cases brought to the attention of the ICC proved that while these domestic laws
can prosecute individuals for crimes such as murder, rape, armed robbery, and larceny, they often
do not equip the national judicial system with the competence to try perpetrators of serious
violations of International Human Rights Law or International Humanitarian Law. Hence the need
to enact laws that can address egregious crimes committed both in conflict and during peace-time.
The standard route for this is the domestication of the Rome Statute by the States Parties. The
assumption behind this prescription is that the domestication process would provide the legal
framework for the implementation of ICC jurisprudence, inching towards a wider network of
universal jurisdiction in the case of select international crimes, and hence a sustainable legal regime
of accountability.
As a final note, the Rome Statute makes provisions for victims’ participations at all stages
of proceedings. As a result, at least in principle, the ICC assures the victims’ access to and
participation in the adjudication process. In international law, this is regarded as a unique
development in the structure and operations of international tribunals. The ICC also takes into
account issues of reparations for victims beyond the traditional punishment and deterrence
objectives of domestic courts. Specifically, Article 79 of the Rome Statute provides for the
establishment of a trust fund for victims and their families. This does not only address the issue of
reparation, it also guarantees legal representation to allow victims to participate at all stages of the
proceedings. The court can determine the extent of damages, and can order perpetrators to
compensate victims as such. Furthermore, adhering to international standards, the ICC does not use
the death penalty as punishment. Article 77 of the ICC’s Statute provides that the court can only
institute penalties such as life imprisonment, imprisonment for a designated number of years, and
fines, but cannot institute the death penalty. Domesticating the Rome Statute could therefore
constitute a significant step to expunge capital punishment from domestic jurisdictions.
These points may appear as tangential to the issue of universal jurisdiction. However, in
effect, they could also be seen as part and parcel of the transfusion of a legal culture of
accountability and the globalized endorsement of a new approach to international crimes, especially
those committed by state authorities and people in position of power, a process that has included
victims as legal actors since Nuremberg trials. In summary, the ICC’s complementarity principle is
essential to the workings of a new legal regime of accountability for select international crimes.
This principle operates at three levels. First, it dictates the set of crimes that fall under the purview
of universal jurisdiction. If local, domestic legal authorities and courts do not act on these crimes,
and if these crimes are brought to the attention of the Court, it then becomes a court of last resort
and, in select cases at least, proceeds to try those accountable for the identified crimes.
Alternatively, if there is not a case brought directly to ICC’s attention, or, if there are local attempts
to achieve accountability that are hindered by domestic circumstances, the ICC then provides a
reservoir of legal expertise, as well as guidelines for juridification for these trials and transitional
justice projects-in-the-making. Hybrid courts fall under this last category. This induction is based
on a nuanced rendition of the complementary principle both by the Court itself and also by domestic
legal and political actors. In this chapter, examples of hybrid courts and their workings have been
presented in order to illustrate their potential, but also to underline the fact that they are not the
ultimate solution to the problems with a centrifugal model of universal jurisdiction. Indeed, their
operations are much more complex than have thus far been foreseen by proponents of universal
jurisdiction in the area of international criminal law.
III. HYBRID COURTS: FRACTURED OR OVERLAPPING LEGAL REGIMES OF ACCOUNTABILITY?
To reiterate, due to disappointments and difficulties with both local trials and international
tribunals in the area of international criminal law, hybrid courts and tribunals are increasingly seen
as a compromise that could benefit from the strengths of international jurisprudence while
minimizing the weaknesses and “side effects” of central institutions such as the ICC, particularly
concerning the charge of neo-colonialism. A hybrid tribunal is indeed a distinct instrument of
international criminal law. It is a court in which international judges and local judges sit side-by-
side, drawing their decisions from a blend of both local and international jurisprudence. From the
point of view of an international/transnational regime of accountability, hybrid courts are expected
to benefit from the outreach of universal jurisdiction and the codification of international criminal
law achieved by various conventions and the Rome Statute, while honoring domestic legal
traditions. During the post-ICC era, the first hybrid court was established in Kosovo in 2000. As
discussed, this was followed by hybrid courts in East Timor, Sierra Leone, and Bosnia. Cambodia
is in the final stages of a hybrid court to address crimes committed by the Khmer Rouge, and
Lebanon is yet another country to have expressed desire to create a hybrid tribunal.376 As mentioned
in the earlier sections of this work, there were also internal and external political demands for the
Sudan’s President Bashir to be tried by a hybrid court rather than by the ICC. Then there is the
successful resolutoion of the trial of the former dictator of Chad, Hissène Habré, in the Senegalese
hybrid court. Concerning this last example, the Protocol on Amendments to the Protocol on the
Statute of the African Court of Justice and Human Rights, known as the Malabo Protocol,377 truly
reconceptualized the idea of transitional justice mechanisms and purported that transitional justice
mechanisms can encompass regional and transnational efforts to respond to mass political violence.
In this sense, the Protocol actively seeks to correct for perceived biases in international criminal
justice. As such, it offers the Continent, and Global South at large, a substantive alternative vision
of local and regional criminal justice and criminal accountability for state criminality targeting a
state’s own civilian population.378 In keeping with these developments, in the final section of this
Chapter, the workings and institutional characteristics of some hybrid courts established since the
establishment of the ICC and the coming into effect of the Rome Statute will be further scrutinized.
My starting premise on hybrid courts has been that domestic criminal justice systems have
options for flexible responses not currently available to the ICC, and that these options extend
beyond criminal proceedings to encompass civil proceedings. The right to sue governments and
out-of-court settlements supervised by judges that allow for the participation of those harmed also
promise a wider range of potentially satisfying compensatory activities for government-induced
harms. These and other strategies of litigation inch towards restorative justice measures, and do not
limit accountability for societal harm to criminal proceedings. That is perhaps where hybrid courts
have so far been underutilized, due to their dependency on the list of crimes and trial procedures
defined by the Rome Statute. Restorative justice, in contrast to
over selected crimes committed by the Khmer Rouge regime between 1975 and 1979. However, only one person has
been indicted due to interference from the government and resource issues, as well as responsible persons passing the
age of 70. For further details on the ECCC, see https://www.un.org/ruleoflaw/thematic-areas/international-lawcourts-
tribunals/international-hybrid-criminal-courts-tribunals/ [15.03.2017].
376 See Mettraux, G., International crimes and the ad hoc tribunals (Oxford University Press, 2005).
377 For the actual text of the Malabo Protocol, see Amnesty International document
https://www.amnesty.org/download/Documents/AFR0130632016ENGLISH.PDF [14.10.2017].
378 On the promise of a new model of international criminal justice emerging from the African context, see Leigh
Stewart, “International Justice in Africa: Defining Authority and Localizing the Global.” (2017) iCourts Working
Paper Series No. 86, accessible at http://dx.doi.org/10.2139/ssrn.2917110 [14.10.2017].
retributive justice as embodied in international criminal law, does not focus solely on the
punishment of the offender, but rather seeks to address the needs of both victim and the offender,
with the goal of restoring the broader wellbeing of the individuals and communities involved. An
equally important point is that contemporary prosecutions at international criminal courts and
tribunals have demonstrated that, where individuals are convicted of core international crimes, the
resources available for reparations and are grossly insufficient to meet even the basic restitutionary
needs of both the victims and the society at large. Most of the wealth that might exist as a result of
crimes such as crimes against humanity or war crimes is likely to be in the hands of individuals via
corporations or other artificial persons who have gained property and income through these mass
human rights violations. None of the international criminal courts and tribunals (together known as
the ICCTs) has adjudicative jurisdiction over artificial persons of any sort. This means that any
progress on restitution and restorative justice must come through national tribunals. This applies to
both core international crimes and the broader category of human rights treaty crimes, which remain
outside the authority of ICCTs.380 Translating the experiences of restorative justice into
international criminal law dealing with mass atrocities is not simple. While restorative justice is
traditionally used in response to lower-impact crimes such as property damage or fraud, it has also
been successfully used in response to higher-order offenses such as sexual assault or murder, for
example, where the victim or their family and the offender agree to participate, and where
traditional retributive forms of punishment, such as imprisonment, could not resolve the issue of
long-standing damages. As a case in point, the potential utility of restorative justice measures in the
context of hybrid court trials and for past mass atrocities was a lively public debate and in and
around the Juba Peace Talks in Uganda. The July 2007 agreement between the Ugandan
Government and the LRA on Accountability and Reconciliation stated that traditional justice
mechanisms as practiced in the communities affected by the conflict shall be promoted, with
necessary modifications, and that restorative justice measures would be treated as a central part of
the framework for accountability and reconciliation. 382 Although the Final Peace Agreement was
not signed, various forms of traditional restorative justice in northern Uganda have been used
extensively with lower-level LRA members who have returned to their communities.383
No doubt there are inherent problems with traditional forms of justice, and overreliance on
them could also lead to an evasion of the retributive justice embodied in indictments by the ICCTs.
Still, some of the practical questions faced by both the state and the society during the Uganda
peace talks reveal the essential element of limitations posed by criminal trials alone. For instance,
how should abducted children who committed atrocities be treated, when they are both victims and
perpetrators? Can traditional justice work both for formerly abducted children who became LRA
fighters under duress, and for LRA commanders and those who enlisted voluntarily as adults?
Traditional forms of restorative justice that are locally rooted and adapted for the purpose of
reconciliation, truth-telling, and advancing peace for a just social and political future
forces dates back to 1986. In 2006, the Juba Peace Talks were held between the GoU and the LRA, mediated by Riek
Machar, the Vice President of South Sudan. However, LRA leader Joseph Kony refused to sign the final peace
agreement, and the LRA has been at large since. Military campaigns by all parties to the 20-year-conflict led to fierce
attacks on civilian populations across Northern Uganda, which included raping, mutilating and abducting civilians,
raiding villages, and looting and burning houses. The conflict has had disastrous economic, physical, social and
psychological effects on the entire civilian population. It is essential to note that both during and after the conflict,
women played important roles as combatants, in support roles in the military as well as the domestic sphere and in
initiating community-led approaches to ending the violence. Nonetheless, transitional justice discussions in Uganda
almost exclusively focus on male parties to the conflict only. For a policy brief describing gender-based violence, its
occurrence and effects on local communities during and after the conflict in Northern Uganda, see Sylvia Pinia and
Frederike Bubenzer, Gender Justice and Reconciliation in Uganda (Institute for Justice and Reconciliation 2011). 382
For the full text of the government’s declaration, see the Report by the Institute for War and Peace Reporting at
https://iwpr.net/global-voices/can-traditional-rituals-bring-justice-northern-uganda [15.03.2017].
383 A small sample of the critical literature on Ugandan Peace Talks includes the following: Ronald R. Atkinson, “From
Uganda to the Congo and Beyond: Pursuing the Lord’s Resistance Army” New York: International Peace Institute,
December 2009 at www.ipacademy.org/media/pdf/publications/e_pub_uganda_to_congo.pdf [15.03.2017]; Adam
Branch, “Uganda’s civil war and the politics of ICC intervention” (2007) 21 Ethics and International Affairs 179;
Mareike Schomerus, “Small Arms Survey. The Lord’s Resistance Army in Sudan: A History and Overview” (Geneva:
Graduate Institute of International Studies, 2007); Moses Chrispus Okello, “The false polarisation of peace and justice
in Uganda” Expert paper “Workshop 2—Justice in Situations of Ongoing Conflict” Conference organized by
International Center for Transitional Justice. Nuremberg, Germany, June 2007. www.peace-justice-
conference.info/download/WS-2-Expert%20Paper-Okello.pdf [15.03.2017]. The author of the present manuscript had
the privilege of working with Moses Okello and Chris Dolan in Uganda on issues pertaining to transitional justice
measures and forced migration in the summer of 2012.
order do not have to take place in opposition to or in isolation from ICCT involvement. However,
the question remains as to whether simply prosecuting and convicting Kony and a few of his senior
commanders would indeed satisfy the needs of justice in the Ugandan context. Rather, a multi-
layered, locally nuanced set of approaches to finding justice and peace is more likely to deliver the
needed results, a possibility that could be made into reality through the mechanisms of a hybrid
court. Overall, the verdict from the Global South is that the ICC in particular pursued a narrow
criminal justice mandate under the Rome Statute to investigate and prosecute those primarily
responsible for committing mass atrocities.
As stated, according to the ICC’s defining principle of complementarity, the Court will take
on an atrocities case only if the domestic courts are “unable or unwilling” to do so. The Court may
also agree to hand over the prosecution of a case in midstream, if its judges are convinced that the
proposed special domestic (or hybrid) court would be as strict and fair in its application of justice—
including its sanctions—as the ICC itself. This is an option that could be put into practice for cases
pertaining to countries such as Sudan and Uganda. It may indeed become a necessary route to take,
as in recent years the ICC has faced a growing degree of suspicion since its first trial was suspended
and the defendant, the Congolese warlord Thomas Lubanga, was subsequently ordered to be
released. In the meantime, a decade of war began in the Democratic Republic of Congo (DRC) with
Laurent-Désiré Kabila’s 1996–1997 campaign to overthrow the repressive rule of Mobutu Sese
Seko in the country then known as Zaire.
Here is how this peculiar story seems to have unfolded: in resource-rich Ituri province in
the country’s northeast, Thomas Lubanga led the Union des Patriotes Congolais (UPC) and its
militia, the Forces Patriotiques pour la Libération du Congo. In 2004, the DRC herself invited the
ICC to investigate and prosecute war crimes that had occurred in the DRC since July 1, 2002.
Meanwhile, DRC authorities arrested Lubanga in March 2005 and charged him with genocide and
crimes against humanity, based on provisions of the DRC’s military criminal code. These charges
concerned the UPC’s alleged participation in the killing of civilians in the villages they attacked.
In March 2005, DRC authorities issued a second warrant charging Lubanga with illegal detention
and murder. After these two warrants, the ICC issued a complementary arrest warrant accusing
Thomas Lubanga Dyilo of war crimes for conscripting children as soldiers in 2006. However, the
Court had to cancel the beginning of his trial in June 2008 because of what is stated as “complex
procedural issues.” The two other Congolese warlords, Mathieu Ngudjolo Chui and Germain
Katanga, are awaiting trial in The Hague, while a fourth, Bosco Ntaganda, has been indicted but is
still at large. None of these long-drawn-out proceedings has helped matters concerning how to deal
with the ICC in particular, and ICCTs in general, as they become involved with mass crimes in the
post-colonial world. The growing tendency and desire is to see locally rooted and regionally
legitimate institutions come on board instead.
CONCLUSION: HYBRID COURTS AS NEW ACTORS OF INTERNATIONAL CRIMINAL LAW IN THE
GLOBAL SOUTH?
Major cases that have taken place before hybrid tribunals all merit close examination in
terms of their legal and political context, as well as their procedural details and jurisdictional
outcomes. To this end, in the remaining pages a select number of these cases will be examined. In
the Extraordinary Chambers of the Courts of Cambodia (ECCC), for instance, there are two
particularly critical cases: Case 001 (Kaing Guek Eav a.k.a. “Duch”), and Case 002 (with
defendants Nuon Chea, Khieu Samphan, Ieng Sary, and Ieng Thirith). The individuals mentioned
were each charged with war crimes, genocide, crimes against humanity, and crimes under
Cambodian Law. Meanwhile, Case 003 and Case 004 have been opposed by the Cambodian
government, as a result of which several members of the court’s international staff resigned from
the tribunal. At the Special Court for Sierra Leone (SCSL), the trials for the Civil Defense Forces
(CDF; including Sam Hinga Norman, Moinina Fofana, and Allieu Kondewa), the Revolutionary
United Front (RUF; including the surviving leaders Issay Sesay, Morris Kallon, and Augustine
Gbao), and the Armed Forces Revolutionary Council (AFRC; Alex Tamba Brima, Brima Bazzy
Kamara and Santigie Borbor Kanu), along with the indictment, arrest, and prosecution of Charles
Taylor, are of particular concern for the future of international criminal law from the perspective of
its future in the Global South.392 There are also the cases of Julio Fernandez and Joao Fernandez,
The Los Palos Case, and the indictment of General Wiranto before the Special Panel for Serious
Crimes, Dili. At the Bosnia War Crimes Chamber, the Foča Rape Camp Trials as well as the Kravica
Case, focusing on violence related to the Srebrenica massacres in 1995, are of significant concern.
Similarly, in Kosovo, the trial of Milos Jokic as well as the Racak massacre and the 2001 bombing
of the Nis Express (Florim Ejupi) are to be followed closely, in terms of both their results and their
reception in the larger context of bringing closure to the war and atrocities that marred former
Yugoslav Republics in South-Eastern Europe.
All of these hybrid courts of the Global South operate based on the same principles that
guide international criminal law and human rights law nexus in other, larger, regional and
international courts. First and foremost, whether they appear as witnesses, victim participants, or
civil parties in mass crimes proceedings, victims contribute vital evidence and insight bearing on
the guilt or innocence of the accused. Their testimony is accepted as a categorically valid
contribution to the truth-telling function of the process, and under some circumstances used as a
base for coming to terms with societal trauma. However, as has been widely discussed, victim
testimonies can also lead to re-traumatization. Furthermore, from a jurisdictional point of view,
they could compromise the fairness or efficiency of the judicial process if emotional distress is
regarded as a factor that undermines the testimony’s relevance, credibility, or focus. Inherent
tensions are inevitable due to the nature of courtroom experience for victims, who are subjected to
pointed questioning and cross-examination on the details of very traumatic events as part of
standard procedures that are essential for a fair criminal trial. What is unique about the hybrid courts
is the way they deal with such tensions, and the flexibility and innovativeness they exhibit
compared to the much more rigid structures embraced by the larger courts. A key example in this
regard is the UN-backed hybrid court established to address crimes of the Pol Pot era. The ECCC
has tried to facilitate victim testimony both through formal procedures and through informal trial
management strategies, including two important innovations in international criminal justice.
Specifically, the ECCC spearheaded the special “victim impact hearings” and “statements of
suffering,” both of which allow civil parties to describe harms they endured under Khmer Rouge
rule before a judgment is reached. These types of interventions help ease the tension between
survivors’ interests and the rights of the accused, which is for the benefit of the society at large.
When it comes to mass atrocities and egregious crimes, the techno-legal transitional justice
paradigm and the heyday of transitional justice institutions funded by the global North but operating
across the Global South is beginning to pass. Therapeutic legalism did not deliver. This creates a
wonderful window of opportunity for the societies in the Global South. Similar to standard
international judicial bodies, such as the International Criminal Court or the European Court of
Human Rights, the hybrid and “internationalized” criminal organs are composed of independent
judges, working on the basis of predetermined rules of procedure, and rendering binding decisions.
They are subject to the same principles governing the work of all international judiciaries, including
due process, impartiality, and independence. Within this wider class of international judicial bodies,
however, hybrid courts belong to a specific order. Similar to the ICC, ICTY, and ICTR, their goal
has been to sanction serious violations of international law in the area of international humanitarian
law and human rights law, to secure individual accountability, and to act as a deterrence mechanism
against future violations. To serve these functions, these internationalized criminal courts impose
criminal penalties. This is perhaps the most critical feature setting this group of judicial bodies apart
from other international judicial bodies. Moreover, like the ICTY and ICTR, but unlike the ICC,
they are by their nature ad hoc institutions. They have been created to address particular situations,
for a limited period of time, and they respond to singular political and historical circumstances.
Finally, like all other international criminal organs, in order to carry out their mission the hybrid
courts rely on cooperation from international legal organs such as the ICC and judicial assistance
by individual states, as well as the endorsement of international organizations such as the UN. In
summary, hybrid courts, as a specific form of internationalized criminal institutions, constitute a
group of their own, and yet they operate within the larger field of other international judicial and
political institutions and entities. They possess common characteristics that set them apart from
other cognate entities. In some cases they are part of the judiciary of a given country, while in
others, they may have been grafted onto the local judicial system by outside actors and posses a
semiindependent status. In all the cases covered in this chapter, however, their make-up is markedly
mixed, incorporating international and national features, and their mandate is circumscribed and
issue-specific. They all are composed of international and local staff (judges, prosecutors, support
staff), and apply a compound of international and national substantial and procedural law. The
remaining question is whether these hybrid courts constitute the future of international criminal law
in terms of the dissemination of jurisprudence produced and endorsed by central institutions such
as the ICC. More specifically, one must carefully examine their significance in terms of an
international regime of accountability regarding the crimes that now fall under the purview of the
Rome Statute.
Throughout this chapter, I posited that international criminal law on war crimes, crimes
against humanity, and genocide—perhaps better clustered together as societal crimes— constitutes
a fragmented accountability regime. The common mistake regarding this regime is to limit the
roster of actors that constitute it to state parties and international institutions such as international
courts. The ICC is an independent, permanent court that tries persons accused of the most serious
crimes of international concern under its aegis. The ICC was established based on a treaty, which
was originally joined by 108 countries. However, the ICC is a court of last resort. It will not act if
a case is investigated or prosecuted by a national judicial system unless the national proceedings
are not genuine, for example if formal proceedings were undertaken solely to shield a person from
criminal responsibility. In addition, the ICC can only try those accused of the gravest crimes. One
of the great innovations of the Statute of the International Criminal Court and its Rules of Procedure
and Evidence is the series of rights granted to victims. For the first time in the history of
international criminal justice, barring the Eichmann trials that took place in a domestic court,
victims have the possibility under the Statute to present their views and observations before the
Court. Participation before the Court may occur at various stages of proceedings, and it may take
different forms. Although it is up to the judges to give directions as to the timing and manner of
participation, the victim-based provisions within the Rome Statute provide victims with the
opportunity to have their voices heard and to obtain, where appropriate, different forms of
reparation. At least in theory, it is this balance between retributive and restorative justice that
enables the ICC to carry out a mandate of not only bringing criminals to justice, but also helping
the victims to obtain justice and have a sense of closure. However, as we have seen from the existing
trials, in reality hybrid courts are much better equipped than the ICC to ensure such results.
In setting up the ICC, its founders stated two main aims: to end impunity for the worst
mass crimes, and to deter would-be perpetrators. Since its inception, three States Parties to the
Rome Statute—Uganda, the Democratic Republic of the Congo (DRC), and the Central African
Republic—have referred situations occurring on their territories to the Court. In addition, the
Security Council has referred the situation in Darfur, Sudan—a non-State Party. The Court’s
Prosecutor has opened and conducted investigations in all of the above-mentioned situations. Given
that the Court’s first four cases are all in Africa, no doubt the accusation of neo-colonial bias is
raising its head. This is despite the fact that, in Congo, Uganda and the Central African Republic,
it was the governments themselves that requested the court to investigate. There are also charges
that accuse the Court of being used by corrupt leaders and dictators in the Global South, who use
the Court as a stage to wage battles against the opposition in their countries. In this context, hybrid
courts do seem to offer a much-needed new platform for accountability in international criminal
law. Another recent case that caused immense controversy is that of Charles Taylor. In May 2010,
the trial of Charles Taylor at the Special Court for Sierra Leone (SCSL) took a dramatic twist as
prosecutors requested the judges to issue a subpoena to supermodel Naomi Campbell, requiring her
appearance before the Chambers. The SCSL Prosecutors made an application that they be allowed
to reopen their case, which was closed in February 2009, or to bring evidence in rebuttal against
Taylor by calling three additional witnesses, Campbell, Carole White, and Mia Farrow. Campbell
was required to testify as a witness about a diamond gift she allegedly received from Taylor in
South Africa in 1997. Campbell’s evidence eventually supported the Prosecution’s allegations that
the Accused used rough diamonds for personal enrichment and arms purchases for Sierra Leone,
particularly during the AFRC/RUF period. As the actual recipient of the accused’ gift of diamonds,
Campbell was in a position to provide material evidence about this event. This case indicated that
the cooperation of states whose citizens are subpoenaed is essential to the functioning of these
hybrid judicial bodies. The witness’ voice is of key importance to justify the exercise of
extraordinary judicial power in international criminal law. That being said, concerns remain about
the efficacy of hybrid courts in carrying forward the mandate of the Rome Statute. Yet, what is the
alternative? Perhaps the problem lies with our expectations from transitional justice, or the rigidity
of institutional forms that the existing framework for international criminal law imposes rather,
than the hybrid courts themselves.
On a final note, although the inherent pluralism of international criminal law has gained
increasing acceptance in recent years, scholarship on sentencing, for instance, remains surprisingly
universalist. Leading scholars advance sentencing principles that are intended to apply to
international crimes, no matter where they are prosecuted. Here, I wish to challenge this viewpoint
and the resultant flat reading of ICC jurisprudence in that regard, both empirically and normatively.
Scholarly expectations of sentencing consistency across international courts are premised on the
misguided and factually unsupported notion that international courts constitute central components
of a unified international criminal justice system. Sentencing disparities across hybrid courts not
only can be justified, but are normatively desirable because they respond to a host of crucial
differences in domestic criminal prosecutions pertaining to international crimes, including
differences in the kinds of atrocities that occurred, the rank and status of the perpetrators who can
be prosecuted, and the hybrid courts’ own mandates. These differences create the need for
differentiated sentencing schemes across different tribunals and courts. It is high time that we accept
domestic sentencing norms as a particularly crucial factor that should influence every hybrid court’s
specific sentencing scheme. As I discussed in the opening chapter of this dissertation, traditional
accounts of international law entertain a distinction between monist and dualist legal systems. In
monist systems, courts apply international law directly. In dualist systems, direct application is not
an option, so courts apply international law indirectly, or not at all. Although this distinction may
be formally correct, it tells us very little about the functional role of domestic courts in the
international legal system.
In this chapter, both a functional and a normative account of hybrid courts was presented,
with a particular focus on the distinctions among the horizontal, vertical, and transnational legal
obligations and merits of such courts. Modern international law regulates horizontal relationships
between states, vertical relationships between states and private parties, and transnational
relationships between private parties whose interactions cross state lines. In conjunction, the role
of domestic courts in interpreting and applying international law varies greatly, depending on
whether the international rule at issue is horizontal, vertical, or transnational. As the examples
examined here demonstrate, the willingness or the ability of state-based courts to apply
international law is not solely a legal matter. It depends heavily on the political nature of the subject
matter of the trials. In effect, domestic courts rarely interpret horizontal rules. Rather, they refer to
treaties that regulate the horizontal relationship between states as ultra vires in nature. As a result,
implementation of horizontal obligations as dictated by international law jurisdiction typically
involves executive and not judicial action. Furthermore, this is true for both monist and dualist
regimes. However, the role of domestic courts in interpreting and applying vertical rules, such as
human rights treaties, tends to be different. Particular political relationships may affect the
willingness of domestic or hybrid courts to implement international law, and to effect legal change
based on their own initiative. This chapter drew on materials from several jurisdictions, all of them
situated in the Global South, to present a holistic account of the role played by hybrid courts in
interpreting and applying horizontal, transnational, and vertical international legal rules. As these
cases demonstrate, the history of the application of universal jurisdiction over core international
crimes has been uneven. Non-governmental organization (NGO) activism has been regarded as a
significant factor in this regard, but much less attention has been paid to the political composition
of the public in terms of their willingness to bring certain matters to the courtroom. After the
Pinochet case in the UK, the “amputation” of the universal jurisdiction laws in Belgium in 2003
and Spain in 2009 and 2014 made it clear that expecting one’s unfinished business to be settled in
another country’s courts was not all that realistic.
Subsequently, an alternative view of this history emerged. Universal jurisdiction is not
necessarily on the decline. The number of universal jurisdiction-related statutes and trials has
increased significantly in recent years, indicating the fact that the trajectory of universal jurisdiction
is shifting towards hybrid and at-home courts. Perhaps it is time to revise received wisdom
concerning the operation of international criminal law in the Global South. Rather than seeing the
matter as an ongoing competition between two conceptions of the role states play in the universal
jurisdiction regime (i.e. national versus international accountability and enforcement regimes), the
emphasis could be put on the mandate of the jurisdiction itself. States are not necessarily the “global
enforcers” of the Rome Statute verbatim. Although signatory states have a role in preventing and
punishing core international crimes committed anywhere in the world, which is the “no safe haven”
conception, states should not be seen as the guardian of the victims of crimes perpetrated by other
states, either. More to the point, the anti-impunity rationale of international criminal law should not
be reduced to legalistic position and a zealously Northern rhetoric about universal jurisdiction. The
“post-colonial legalism” approach to international law has already established a critical
jurisprudential tradition that asks how actors use and apply law, in order to understand how law
obtains meaning, is practised, and changes over time. Combined with TWAIL scholarship, it is
possible to ask different questions about the possibility of life after Rome Statute, so to speak. The
rise of transnational activity that led to an enlarged scope of both national and transnational
problem-solving strategies through international law further enhances this viewpoint. Debates on
universal jurisdiction concerning gross and systemic humanitarian law violations have long
suffered from a single focus on institutional certainties or a neutered state-centric worldview. It is
time to look closely at the realities of universal jurisdiction on the ground, and to give up the
obsession with what goes on in the chambers of international courts or national courts in the North,
to come up with strategies and answers about human suffering in the Global South from within.
Chapter VI. Mea culpa, Sua culpa, Tua Maxima Culpa: Collective Responsibility and Legal
Judgment
INTRODUCTION
ad auctores reddit sceleris coacti culpa –the guilt of imposed crimes lies on those who impose
them.
Seneca.
cavendum est ne major poena, quam culpa, sit—care should be taken in all cases, that the
punishment not exceed the guilt.
Cicero.
If only we would abide by the ethical guidelines offered by the Romans, problematic aspects of
collective responsibility in law and legal morality could perhaps be successfully avoided. However,
a harmonious relationship between social life and political peace is not so easy to attain or sustain
during deep crises and mass violence in our current era. Issues concerning justice and personal
desert at times of turmoil and uproar such as genocidal violence, ethnic cleansing, or crimes against
humanity cannot be reduced to proven links between punishable individual actions, international
criminal law and related regimes of responsibilitycum-accountability. The intricacies of mass
political violence and societal crimes render such direct and methodical solutions lacking. This final
chapter of the dissertation thus invites the reader to consider the limitations of seeking societal
peace and political transformation mainly on the grounds of achieving criminal accountability
concerning the individual perpetrators of mass atrocities. All of the examples covered in the
previous pages pertain to post-WWII applications of universal jurisdiction concerning egregious
crimes. They also belong to a particularly difficult field of inquiry: transitional justice. The field of
transitional justice is increasingly characterized by the dominance of legalism to the detriment of
advocacy, politics, scholarship and practice. My fear is that correctives to such leanings are by and
large missing in legal scholarship. Furthermore, the tendency towards aggrandizement of litigation-
related measures is further supported by the success of hybrid courts and other localized
applications of universal jurisdiction in international criminal law. In this closing chapter, I will
thus venture a politicophilosophical inquiry underlining the importance of legal humility and
contextualizing the criminology of transitional justice. As law's place at the heart of transition from
societal and political conflicts becomes increasingly secure, the time is right for a more honest
appraisal of the limitations of legalism and a correspondingly greater willingness to countenance
the role of forms of knowledge pertaining to accountability for mass atrocities. Specifically, an
endowed debate on the difficult subject of collective responsibility will both thicken the subject of
criminal accountability for mass violence, and deliver a methodological insight to more effective
changes on the ground.
How far are our lives implicated by what other people do to each other indirectly? How
much responsibility falls on our shoulders from the harms that flow from the social, economic, and
political institutions in which we are embedded, even if we do not inflict harm while occupying
positions of authority? Do our relations as individuals to spheres of collective existence lead to
complicity and collective responsibility in the event that they lead to harm for select sectors of the
society? In the following pages, I will argue that the relationship between collective responsibility,
individual guilt and criminal accountability is a very critical albeit difficult one, often avoided
entirely in international criminal law. And yet, it provides a precious point of entry to the nature of
our relations with society and the state, of which we are a part and for which we are the harbingers
of legitimacy. Here, I posit that international criminal law scholarship needs a richer theory of
accountability, in which our understanding of individual responsibility in relation to societal acts
of violence not only allows for but demands an analysis of collective action and thus contextualizes
litigation in this select area. Specifically, I will argue that what should be sought after is not more
complicated punishment schemes but rather a substantive way of addressing harm we give to each
other both by commission and by omission. In this context, intentional and purposeful collective
action, collective moral responsibility and collective guilt, individual responsibility for (and in)
collective wrongs, collective legal obligations to victims of societal and political crimes, and
individual moral responsibility with regard to wrongful social and political acts constitute key
entries to a meaningful politico-legal debate on collective responsibility and legal judgment. I will
pursue these questions in a context originally set by Hannah Arendt’s work on legal judgment.
In Eichmann in Jerusalem, her account of the trial of Adolf Eichmann, Arendt used the
phrase “the banality of evil,” describing how a man who was neither a monster nor a demon could
nevertheless be an agent of the most extreme and evil acts of violence and destruction. This
subsequently prompted her to readdress fundamental questions and concerns about the nature of
[collective] violence and our making of moral choices. Her Responsibility and Judgment, a sequel
to her work on Eichmann in this regard, gathers together unpublished writings from the last decade
of Arendt’s life. In these later works, she strived to further explicate the meaning of the Eichmann
trial in Jerusalem. At the heart of this series of essays lies a profound ethical investigation
concerning the use of traditional moral truths as politico-legal standards to judge criminality as it
relates to mass violence. Arendt’s analysis of judgment tests to its limits our ability to distinguish
good from evil and right from wrong. The radical evil she had addressed in her earlier work on
totalitarianism evolves into a much more pernicious account of evil, almost independent of political
ideology, whose execution is limitless when the perpetrator feels no remorse and can erase the
memory of his/her acts as soon as they are committed. For such acts, individual criminal
responsibility, even if it comes tied to mass crimes such as crimes against humanity, does not suffice
for us to understand the true nature of the harm and wrong implicated by such violent acts. Arendt’s
conclusion has serious repercussions for contemporary conceptions of accountability at the level of
international criminal law, and the debate presented here is a token of dedication to think further in
that vein.
We are currently witnessing a bewildering variety of developments in regimes of control
articulated in domestic legislation of criminal justice. These range from demands for execution or
preventive detention for sexual predators, paedophiles, and persistent violent offenders to the
development of dispersed, designed in-control regimes for the continual, silent and largely invisible
work of the assessment, management, communication and control of risk-laden groups deemed
prone to commit crimes. Political programmes of crime control cycle through the alternatives from
“prison works” and “boot camps,” through “community corrections,” “reintegrative shaming,”
“therapeutic rehabilitation” to’ “lifetime imprisonment without parole” and ultimately the death
penalty. Concerns about illegality and crime at the individual level are clearly articulated both by
judicial institutions and security practices. Nonetheless, at a more general level, little attention is
paid to the inner workings of mass political violence and systemic societal crimes. In an attempt to
address this lacuna, I will pinpoint the ways in which accountability regimes in international
criminal law have been severely individualized with regard to practices of government illegality
and state criminality. In the post-Rome Statute era of international criminal law, the pervasive
image of the perpetrator of crime as the juridical subject of the rule of law is no doubt a great leap
forward towards the erosion of unjustified defense of state sovereignty and related individual
immunities. However, the forms of legal knowledge and modes of jurisprudential expertise that are
implicated in these new techniques and rationalities of criminalization of state conduct also carry
the danger of blinding us towards larger socio-political realities of mass crimes.
In criminal justice, individual autonomy is used as a bench-mark and an ideal that refers to the
capacity to be one's own person, and to live one's life according to reasons and motives that are
taken as one's own and not the product of manipulative, coercive or distorting external forces.
Individual autonomy is also the central value in the Enlightenment tradition of moral philosophy.
Starting with Kant, it is given fundamental status in John Stuart Mill's and his successors’ versions
of utilitarian liberalism. Examination of the concept of autonomy similarly figures centrally in
debates over legal freedoms and rights (such as freedom of speech and the right to privacy), as well
as moral and political theory pertaining to justice. In the realm of moral theory, seeing autonomy
as a foundational value stands in contrast with alternative frameworks, such as ethics of care and
ethics of virtue. Consequently, these concepts are rarely brought into debates on criminal justice.
Autonomy has traditionally been thought to connote independence, and hence to prioritize
individual agency in moral thinking and political decision-making.
In the specific context of individual autonomy and its relation to the banality of evil connoting
societal crimes, the existing arsenal of concepts we have does not suffice to deal with the massive
problem in hand: namely, how to understand the weight of individual choices in producing
unforgivable forms of societal and mass harm. In the following pages, I argue that we therefore
have to turn to another concept, albeit one that Arendt did not contend with at all. In order to make
sense of the conundrum of common-place and rule-bound choices made by individuals leading to
collective forms of violence and societal wrongdoing, I will examine the idea of collective
responsibility. In legal philosophy, starting with Joel Feinberg’s work, the debate on collective
responsibility has been kept alive like a slowly burning flame, looming at the background of
questions concerning accountability but rarely entering the registers of litigationoriented takes on
applications of international law in the context of transitional justice measures and in post-conflict
societies. It has received ire from many corners, as it goes against the basic principle that no one
can be responsible, in the properly ethical or criminal sense, for the conduct of another, and that
criminal responsibility squarely belongs to the individual. Concerning mass political violence and
state criminality, the implications of exclusive reliance on the principle of individual criminal
liability are more damaging than is evident at first. In international criminal law, reverting to the
barbarous notion of collective or group responsibility for litigation purposes is considered an
absolute derogation of rights, and rightfully. What I am pursuing here is rather different: it is the
notion of accountability for atrocities as societal responsibility in a distinctively moral and socio-
political sense, and thus as an element that foregrounds the socio-political acceptance and
legitimacy of criminal trials targeting egregious acts such as crimes against humanity.
My purpose is not to attribute a diminishing importance to causation in criminal law, whether
domestic or international in its application. In ideal circumstances where harm is not involved, the
outcome of an act does not and should not effect our assessment of the moral quality of the act. In
cases of acts blameworthy due to their resulting in harm or near harm, however, should our moral
assessment be neutral? Furthermore, concerning acts that are committed under the aegis of state
criminality, should we not look elsewhere than the individual mens rea component? Do such
criminal acts not require societal endorsement, support and condoning? Should larger outcomes
never matter in our assessment of a person's individual criminal conduct? Back in 1968, when D.
E. Cooper proposed the thesis that collectives can be held responsible in a sense not reducible to
the individual responsibility of members of the collective, he also stated clearly that it is not moral
responsibility which is involved in such accountability. I strongly concur with Cooper, and invite
us to revisit the somewhat dated collective responsibility debate at the current historical junction of
criminal acts pertaining to state criminality, civil war, military occupation, and neo-colonialism,
almost all of which are now within the reach of the current regime of accountability in international
criminal law and the universal jurisdiction jurisprudence. We have nothing to lose in this regard,
and perhaps much to gain, by at least temporarily suspending our overdependence on legal
institutions for finding cures to our societal ills via litigation of state criminality and political
violence solely based on individual accountability.
I. BEYOND EICHMANN: ON THE NECESSITY OF JUDGMENT
Half a century ago, while writing Eichmann in Jerusalem, Hannah Arendt struggled to
defend the possibility of judgment against the manifold problems we encounter in our attempts to
offer legally valid and morally meaningful verdicts concerning those who have committed crimes
in morally bankrupt and legally defunct communities. No doubt some of Arendt’s conclusions
concerning Eichmann are equivocal. Her theory of judgment in the Eichmann manuscript itself
could even suggest that Arendt may have remained trapped within a set of Kantian assumptions in
her philosophy of history, and thus ended up defining the question of freedom to act in a binary
way. In contradistinction, proposing that judgment has an antinomical character and emphasizing
the importance of elements of reason and sense as well as circumstance and context may allow for
a better understanding of the collective nature of responsibility for societal crimes. In Theodor
Adorno’s terms, judgment becomes the very test for the limits of agency and autonomy suffered by
the potentially free but essentially “unfree subjects” of modernity.
Contemporary readers of Eichmann in Jerusalem sometimes cast it as a juridical text, due
to the fact that it is presumably more concerned with justice than with politics or ethics. Such
juridical readings of Arendt’s treatise on Eichmann in particular, and crimes against humanity in
general, focus attention on what Arendt calls the primary challenge of the case—namely, the trial
of Eichmann's unprecedented crimes against humanity in a domestic court.424 However, putting so
much emphasis on the nature of crimes against humanity legislation leads to our failing to attend
to Arendt's principled resistance to a merely juridical response in such cases. This is clearly
evidenced in her criticism of both procedural and substantive aspects of the Jerusalem Court's
ruling. Taking my cue from Arendt's resistance to the Israeli Court's approach, here I argue that
Eichmann in Jerusalem does not authorize a solely juridical approach to the unprecedented and
egregious crimes under discussion, namely crimes against humanity. Instead, it could lead us to
think about the importance of an “agonistic understanding of law.” Such a take would foreground
law's dependence on the political acceptance or contestation of legal strictures, maxims, and
constraints. Especially with the advent of mass crimes such as crimes against humanity, Arendt asks
us to attend to law's dependence on the human capacity to resist ‘illegal’ compulsions, and urges us
to redefine the meaning and merit of legal institutions in light of the responsibility of all concerned
for their maintenance, sustenance, and functioning.
Foregrounding this debate, in her Lectures on Kant’s Political Philosophy, Arendt
detranscendentalizes Kant by linking Kant’s judgment of taste to empirical sociability and lived
experience.427 However, she does not confuse Kant’s idea of enlarged thinking with an actual
dialogue with others. Instead, she introduces the notion of interdependence between judgment and
speech (or communication). In this sense, Arendt interprets Kant’s Critique of Judgment not as a
theory of aesthetic judgment, but as an answer to the more general question of “how do I judge?”
She also draws a distinction between common sense and community sense, a notion further
explored in the work of Jennifer Nedelsky and others writing in the area of human rights. Working
with the notion of community sense, Arendt uncovers a foundation not only for humans as political
beings but also for the idea of humanity at large, a finding that is often overlooked in the literature
on her theory of judgment. Here, I would like to bring back this sense of the political groundedness
of collective action vis-à-vis our notion of collective responsibility and extend this debate to
criminal judgments pertaining to individual acts leading to state criminality, political violence, or
both. This is the very category of criminal acts that fall under the purview of crimes against
humanity legislation, the key focus of this dissertation.
Of Arendt's completed works, the “Postscriptum” to Thinking, the first volume of The Life of the
Mind, and her Lectures on Kant's Political Philosophy are widely considered to be her definitive
remarks on judgment. These texts are privileged for two reasons. First, they were written after
Arendt's controversial text, Eichmann in Jerusalem. It was Arendt's recognition of the role that
Eichmann's inability to think played in his war crimes which motivated her to analyze more fully
not only the “human activity” of thinking, but those of willing and judging as well. In addition, in
both The Life of the Mind and the Kant Lectures, Arendt treats judgment as a distinct human activity
with a unique potential. In these later works, though Arendt does indeed reformulate her notion of
judgment, she does not depoliticize it. On the contrary, the effects of what Arendt refers to as “dark
times” are long-term and pervasive and, moreover, the function of making judgments within such
an expanded context remains as politically germane as it was in the immediate aftermath of WWII.
The basic project of Arendt's Lectures on Kant's Political Philosophy could be identified as an
attempt to ground the idea of human dignity within the context of the publicly displayed “words
and deeds” that constitute the realm of human affairs and, of course, politics. Her attempt to redefine
human dignity also involves a strong philosophical response to Plato's impugning of dignity from
the polis. The Kant Lectures bring this distinct philosophical take on the political nature of genuine
human conduct to its completion: the enactment of public deeds presupposes a company of engaged
spectators who draw meaning by judging what is enacted in the public sphere. In other words,
Arendt appropriates and reconceptualizes Kant’s work in such a way that judgment, while a distinct
faculty, nonetheless retains an utmost political character. To put Arendt’s conclusion in a specific
international criminal law and crimes against humanity context, it is not possible to kill, plunder,
violate, rape and decimate entire populations using state power or official condonement unless there
was wide-spread complicity for such egregious acts on the
of Judgment” (2010) 26 Philosophy and Social Criticism 1; and Roger Berkowitz, ed. Thinking in Dark Times:
Hannah Arendt on Ethics and Politics (Fordham University Press, 2010).
ground.
II. TOWARDS AN ENGAGED THEORY OF JUDGMENT AND COLLECTIVE RESPONSIBILITY
The notion of collective responsibility indeed proves legally and morally unsustainable if it is taken
to be an unqualified application of the Kantian model of individual moral responsibility to society
at large.429 However, it emerges as a more coherent phenomenon if we choose to formulate it in
terms of moral choices leading to willing acts that are above and beyond the singular capacity of
autonomous individual agents. Our desire for accountability in the case of actions of groups and
institutions that cause harm and injustice in the society at large could be satiated, at least partially,
if we allow the lens of collective responsibility to refocus our attention from intentionality of harm
to processes concerning its production or possible curtailment.
In the field of legal theory pertaining to criminal justice, the biggest controversy
429 For a strong philosophical critique of the direct application of the Kantian model with reference to legal obligations,
see David Copp, “What Collectives are: Agency, Individualism and Legal Theory” (1984) 23 Dialogue 249; and Kendy
M. Hess, “Because They Can: The Basis for the Moral Obligations of Collectives” (2014) 38 Midwest Studies in
Philosophy 203. Philosophers who reject rank individualism and a self-interested legal culture tend to reject schisms
between legal norms and community values, institutionalized separation of law from morals, supremacy of intricate
regimes of legislation, and adjudication over social truths. They also tend to stand against the culture of rampant
litigation for seeking justice. The alienation of individuals from each other and from their communities is easily bred
within highly complex political and legal systems. This issue is squarely taken up by communitarian critiques of law
in legal theory. See for instance, Chantal Mouffe, "Democratic citizenship and the political community" in her
Dimensions of radical democracy: Pluralism, citizenship, community (Verso, 1992) at 225-239.
concerning collective responsibility involves the method of its attribution. Without grounds for
ascertaining collective responsibility, received wisdom has it that there is no possibility for
judgment. Legally speaking, collective responsibility is defined mainly in terms of duties to respond
to the victims of collective crimes. Therefore, it invokes a reverse reading that is heavily situation-
bound. Accordingly, reasonable fear on the part of victimized groups and communities creates
duties to respond that concern both members of the perpetrating group and the society at large. This
circumscribed account of collective responsibility may offer us a justification for making judgments
about collective responsibility that are compatible with the separateness and autonomy of persons.
However, it still leaves a number of critical questions unattended. For instance, could we defend
the claim that collective responsibility can be assigned based on group membership?. For the
purpose of examining the nature of legal judgment under the strenuous circumstances of egregious
crimes, collective responsibility is indeed best understood in terms of societal duties to respond to
the victims of collective crimes rather than attribution of collective guilt and culpability. If applied
to individual accountability-based adjudication of state criminality, this presupposition would
translate into the need to determine whether a person in a position of high office and responsibility
used all available means to subvert and constrain damages that were implicated by egregious acts
committed using public resources, in addition to the determination of whether the individual in
question partook in these acts.
The responsibilities moral agents have in relation to global structural social processes with unjust
consequences constitute another good case in point for further debate on the inadequacies endemic
to existing criminal liability schemes when applied to mass crimes. How ought moral agents,
whether individual or institutional, conceptualize their responsibilities in relation to global
injustice, for instance, if they do so at all? In this case, a model of collective responsibility deriving
from global social connections and interdependencies may serve as the foundation for defining
obligations of justice that arise from structural social processes. As detailed in the work of Iris
Marion Young, for instance, such a social connection model of responsibility dictates that all agents
who contribute by their actions to the structural processes that produce injustice have
responsibilities to work to remedy these injustices. This is quite different from the standard model
of criminal responsibility that puts emphasis on liability. This alternative model does not isolate
perpetrators. Instead, it judges background conditions of action as well as consequences. It is
forward-looking and relies upon shared responsibility. Furthermore, it can be discharged only
through collective action and as such, would not fit into the criminal justice model per se but would
necessitate the inclusion of alternative modes of justice. As such, Marion Young’s social connection
model and Arendt’s notion of community sense have more in common than at first meets the eye,
and this is a hopeful overlap for any future discussion on collective responsibility in international
criminal law under circumstances dictated by mass atrocities and state criminality.
A. The Threshold Question
In terms of commission of mass crimes such as those defined by crimes against humanity, which
is the subject matter of this work, could we possibly redefine the legal threshold to determine
whether a collective shares the intention to harm a select group, which is the distinctive feature of
collective as opposed to individual responsibility? There are at least three criteria of adequacy for
an account of shared criminal intention, namely disjunction, concurrence, and obligation.
Accordingly, people share an intention when and only when they are jointly committed to intend
as a body to commit an act in the future. In other words, there is the element of premeditation as
well as active participation in the commission of a violent act or acts. The problem is that, in the
case of societal and political crimes, many instances of wrongdoing and violence appear to be of a
distinctly spontaneous kind, without clear signs of premeditation. It is true that when one group
commits genocide against another, the genocide is collective in the sense that the wrongfulness of
genocide is morally distinct from the aggregation of individual murders that make up the genocidal
killings in their entirety. Even then, however, it may not be possible to prove, or indeed to find a
clear framework for, determining shared intentions for genocide for each of the perpetrators of these
criminal acts. The problem, which I would rephrase as the problem of collective wrongdoing, is
how to assign blame to individual contributors for distinctly collective acts of violence, when none
of those individual contributors is singularly guilty of the Wrongdoing (with a capital W) in
question.
In such instances, suffice it to say that intention is not merely a private mental act known only by
those who express their intentions in public. Rather, intention is a communal act. Meanwhile, it is
only observable circumstances and consequences that determine the justiciability of intention in
criminal law. Here, Christopher Kutz’s Complicity Principle provides a good starting point for
tackling the problem of intentionality in societal and political mass crimes. Kutz’s work examines
the relationship between collective responsibility and individual guilt. He presents a rigorous
philosophical account of the nature of our relations to social groups in which we participate, and
then links this debate to contemporary moral theory. For him, there are two prevailing theories of
moral philosophy, Kantianism and consequentialism, both of which have difficulties dealing with
the issue of complicity in a legal context. For Kutz, similar to Arendt, a richer and more grounded
theory of accountability demands that our understanding of collective action not only allow but call
for redefining individual responsibility in collective settings via complicity.
No doubt Kutz’ principle ought to be expanded to link it with the legal phenomenon of attribution
of collective responsibility. In this context, the view I purport is that individuals are blameworthy
for collective harms insofar as they knowingly participate in those harms, and that said individuals
remain blameworthy regardless of whether they succeed in making a causal contribution to those
harms.436 In this sense, my argument for collective responsibility is based on contra-factual
reasoning. For instance, if a collective takes no active responsibility for the conservation of life and
livelihood of all of its members but especially ignores those with vulnerabilities, then it is right to
presume that there emerges collective responsibility for the harm that ensues from lack of provision
for any necessary protections.437 This is one way to avoid the
That fact on its own gives us a hint about the fluidity of the concepts of liability, culpability, and accountability, even
under the most rigid circumstances such as active warfare.
436 In support of my proposition, see Margaret Gilbert, Sociality and Responsibility: New Essays in Plural Subject
Theory (Rowman & Littlefield Publishers, 2000). One of the most distinguished social philosophers of our times,
Margaret Gilbert develops her arguments around a plural subject theory of human sociality, first introduced in her On
Social Facts and Living Together. See Margaret Gilbert, Living together: Rationality, sociality, and obligation
(Rowman & Littlefield Publishers, 1996), and her earlier work, On social facts (Princeton University Press, 1992). In
Sociality and Responsibility, Gilber presents an extended discussion of her proposal that joint commitments inherently
involve obligations and rights, and thus proposes a new theory of obligations and rights that deviates from
individualistic agency arguments. Presenting political obligation, collective remorse, collective guilt, shared intention,
and important classes of rights and obligations from a plural subject theory perspective, Gilbert’s work is very relevant
to legal scholars who engage the subject of collective responsibility. Also see Margaret Gilbert, “Collective guilt and
collective guilt feelings” (2002) 6 The Journal of Ethics 115; and her Joint commitment: How we make the social world
(Oxford University Press, 2015).
437 For a strong take on environmental justice and collective responsibility, see Mary Oksanen, “Species
Extinction and Collective Responsibility” (2007) in The Proceedings of the Twenty-First World Congress of Philosophy
(Vol. 3 at 179-183). On the issue of what we owe to the world at large, David Zoller argues that while it is well-
recognized that many everyday consumer behaviors, such the purchasing of sweatshop goods, come at a very heavy
cost to the global poor, it has proven difficult to argue that contributors are somehow morally complicit in those
outcomes. The problem concerning marginal contributions to distant harms stems from lack of explicit knowledge of
the aforementioned consequences which consumers could have born in mind. Critics taking this approach reasonably
argue that distant and inadvertent acts that cause harm provide insufficient grounds for moral or legal blame.
problem of intentionality that clouded Arendt’s path, in terms of identifying wrongdoing that is not
seen or known as wrongdoing by either the person who commits it or by those who condone it.
At this point, the writings of David Miller on national responsibility, read alongside Karl Jasper’s
work on societal responsibility, are of great relevance. In his work on national responsibility and
global justice, Miller conceptualizes and justifies a particular model of national responsibility—a
model that may be helpful in devising a wholesome approach to collective responsibility in terms
of justice.438 His conceptualization proceeds in two steps. He starts by developing two models of
collective responsibility, the like-minded group model and the cooperative practice model. He then
proceeds to discuss national responsibility as a species of collective responsibility, and argues that
nations have features such that both models of collective responsibility apply to them. I would argue
that Miller’s like-minded model does not provide a plausible conceptualization of collective
responsibility in the politico-legal realm at all, as it tends to rely upon a bucolic, romanticized notion
of a nation as an ethically cohesive unit.439 The collective practice model, on the other hand, could
provide a strong argument for formulating state criminality-related collective responsibility, as is
widely present in the context of crimes against humanity. The standard example used in this context
is, of course, the conceptualization of crimes pertaining to societal and political violence under the
Third Reich.440
However, the damage that agents bring about through their contributions to distant collective wrongs ultimately
depends upon our morally sparse and individualistic take on everyday purchases and decisions. In this instance,
contributors who knowingly disregard distant harms, rather than being reckless or negligent about consequences they
could have foreseen, directly perpetuate the moral invisibility and the lack of recognition from which the global poor
generally suffer. For Zoller, this provides agents with clearer moral reasons to refrain from knowing participation in
unstructured collective harms. See David Zoller, “Moral Responsibility for Distant Collective Harms” (2015) 18
Ethical Theory and Moral Practice 995. Also see Bjorn Pettersson, “Co-responsibility and Causal Involvement” (2013)
41 Philosophia 847.
438 See David Miller, "National responsibility and global justice" (2008) 11 Critical Review of International
Social and Political Philosophy 383.
439 For a critique of Miller’s work, see Roland Pierik, “Collective responsibility and national responsibility”
(2008) 11 Critical Review of International Social and Political Philosophy 465; and K. Lippert-Rasmussen,
“Responsible nations: Miller on national responsibility” (2009) 2 Ethics & Global Politics 21.
440 To reiterate an otherwise well-known historical vignette, Hitler was appointed Chancellor of Germany by the
President of the Weimar Republic Paul von Hindenburg on January 1933. The Nazi Party then began to eliminate all
political opposition and consolidate its power. By 1934 Hitler became dictator of Germany, by merging the powers and
offices of the Chancellery and Presidency. This was further entrenched by a national referendum held on 19 August
1934, confirming Hitler as the sole Führer (leader) of Germany. Consequently, all power was centralized in Hitler's
office, and his word became above all laws. As to be expected, opposition to Hitler's rule was ruthlessly suppressed
and members of the liberal, socialist, and communist opposition were killed, imprisoned, or exiled. The
In this regard, Miller attempts to attribute to nations the kind of responsibility that is generally
vested in states as legal actors. Unfortunately, models of statist legal responsibility disregard
society’s inner dynamics. In addition, they sanction the differences between intrastate and interstate
forms of law as irremovable. Miller aims to build up the moral and historical prestige of the nation-
state to make it a viable agent embracing a claim of universal morality. Miller’s nations thus become
political organizations capable of instantiating great moral truths. This results in an account that is
compassionately cosmopolitan, and yet with very little interest in or engagement with local forms
of delivery of justice that relate to mass violence either within state perimeters or globally.441
Overall, however, Miller’s work raises a number of interesting questions concerning both weak
and strong variants of collective responsibility and state-centric law.442 For instance, he defends a
theory of connections to address remedial responsibilities amongst states. His interventions on the
subject of cosmopolitanism in particular endorse a position where states that are causally and
morally responsible for deprivation and suffering in other states may be held remedially responsible
for their actions. This is despite the fact that there is no international mechanism to ensure that
remedially responsible states would offer assistance to or accountability for the suffering of affected
states and societies, other than instances of victor’s justice and imposed war reparations. As such,
this job squarely falls into the hands of international public law for purposes of enforcement. In this
regard, Miller’s claims of universal morality as applied to international or transnational law are
severely idealistic. In contradiction, I would argue that we must initiate a kind of deflation of both
the nation and the state as foundational moral agents in international law. Just as the diminution of
responsibility for mass
implementation of the regime's racial policies culminated in the mass murder of Jews and other minorities in the
Holocaust. For a detailed account of law during the Third Reich, see the historical pieces written and published during
the Second World War: K. Loewenstein, “Law in the Third Reich” (1936) 45 The Yale Law Journal 716; V. L. Gott,
“The National Socialist theory of international law” (1938) 32 The American Journal of International Law 704; as well
as the more recent debates such as D. F. Vagts, “International law in the Third Reich” (1990) 84 The American Journal
of International Law 661; Martin Lippman, “They Shoot Lawyers Don't They: Law in the Third Reich and the Global
Threat to the Independence of the Judiciary” (1992) 23 Cal. W. Int'l LJ 257; and David Dyzenhaus, "Legal theory in
the collapse of Weimar: contemporary lessons?" (1997) 91 American Political Science Review 121.
441 See T. J. Levy, “National and statist responsibility” (2008) 11 Critical Review of International Social and
Political Philosophy 485; and Margaret Moore, “Global justice, climate change and Miller’s theory of responsibility”
(2008) 11 Critical Review of International Social and Political Philosophy 501.
442 See in particular David Miller, "Collective responsibility and international inequality in the law of peoples"
In Rawls's Law of Peoples: A Realistic Utopia? (2006) at 191-205.
crimes from the collective entirely to the individual is faulty, the aggrandizement of individual
moral agency and accountability to the grandiose entity of the state or the construct of the nation as
the ultimate truth bearer is equally hyperbolical.
B. The Outcomes Perspective
At this point, as an alternative to cosmopolitan and liberal accounts such as Miller’s work, I will
examine collective responsibility from an outcomes perspective. A central feature of my analysis is
to give precision to the idea that moral responsibility for criminal acts implies a reasonable demand
and possibility that an agent should have acted otherwise. Allocation of moral responsibility to
individuals concerning complex collective actions that result in mass harm is an issue that goes
well beyond “the problem of many hands” as exemplified by the classic Frankfurt counter-
examples. Philosophers usually discuss responsibility in terms of responsibility for past actions or
as a question about the nature of moral agency. Yet the word responsibility also ushers in deep
concerns about human agency, more than the answers it possibly elicits in legal terms. This
particular take on responsibility also relates it to civic virtues that can be demonstrated both by
individuals and organizations or institutions. Such a virtue-based account of responsibility occupies
a distinctive place in the context of discussions of the moral and political needs of societies,
especially those that have survived mass political violence and trauma.
This is an opportune moment to bring in Karl Jaspers’ work. When Hitler came to power in 1933,
Jaspers was taken by some degree of surprise, as he had thought that this movement would destroy
itself from within, leading to the reorganization and liberation of other political forces active at the
time. His expectations did not materialize, and because his wife was Jewish, Jaspers qualified as an
enemy of the German state. Consequently, from 1933 onwards, he was excluded from the higher
councils of the university. In 1935 the first part of his work on logic, entitled Vernunft und Existenz
(Reason and Existence, 1955), appeared. This was followed by a book on Nietzsche in 1936, an
essay on Descartes in 1937, and in 1938 his Existenzphilosophie. Meanwhile, a series of decrees
were promulgated against him, including removal from his professorship and a total ban on any
further publication. These measures effectively barred him from living and working in Germany.
Permission was finally granted to him in 1942 to go to Switzerland, but a condition was imposed
by the Nazis that required his wife to remain behind in Germany. Jaspers chose to stay with his wife
and remain in Germany. Both of them had decided, in case of an arrest, to commit suicide. In 1945
he was told that his deportation was scheduled to take place on April 14. On March 30, Heidelberg
was occupied by the American forces and Jaspers and his wife avoided deportation.
Marked by the events of the pre-war years, Jasper’s detailed philosophical examination of the
contemporary state and nature of humankind, titled Man in the Modern Age. This is a seminal work
that touches upon precisely the issue of our responsibility for our own and others’ future.
Elucidating his theories on a variety of topics pertaining to contemporary and future human
existence, the volume meditates upon the tension between mass-order and individual human life,
our present conception of human life, and the potential for a better future. Jaspers wrote this work
before the advent of the Second World War, but at a time when Nazi ideology and institutional
practices were beginning to run rampant in Germany. This particular volume constitutes the
departure point for the next section of the present debate on collective responsibility.
Jaspers’ contribution to the literature on collective responsibility took an even more pointed form
with the publication of Die Schuldfrage [The Guilt Question], which addressed the question of the
collective responsibility of the German people for the criminal actions of their government. In that
short treatise, Jaspers listed four types of guilt. The first category, criminal guilt, derives from
violating unequivocal laws and is capable of being determined based on objective proof. Its
jurisdiction rests with the courts. The second category, political guilt, involves the deeds of
statesmen and implicates the citizens of a state as having to bear the consequences of the deeds of
the state whose power governs them and under whose order they live. Jurisdiction of this type of
guilt rests with the power and will of the victor if the state was defeated militarily, or, again with
the courts if this was a civil war situation. The charge would be failure to exercise political prudence
to mitigate arbitrary use of power. Then there is the category of the moral guilt. It pertains to the
actions of those who cannot act otherwise than as an individual. They are nonetheless deemed
morally responsible for all their deeds, including the execution of political and military orders. Its
jurisdiction, however, purely rests with one’s conscience, and is retained within the community.
This text was written prior to the Nuremberg and Eichmann Trials. In this regard, Jaspers’ last
category, that of metaphysical guilt, is the most troubling one, and it also became a point of
contention in his lengthy exchanges with Arendt during the post-War years. Accordingly, Jaspers
assumes that there exists a solidarity among men as humans that makes each co-responsible for
crimes committed in his presence or with his knowledge.
No doubt, the underlying assumptions of Jasper’s work on guilt can easily lead to the
sanctimonious political moralism that has often been used to justify acts of vengeance and
collective punishment. It may also lead to a conception of war as a crusade that requires
unconditional surrender by the enemy. Still, there is still room for further deliberation. For instance,
for Jaspers metaphysical guilt results from confining our solidarity to the closest human ties—
family, friends, neighborus, ethno-religious brethren, etc.—rather than extending it to all of
humanity. It makes us suffer from lack of proportion in terms of judging our world and human
value. And most importantly, Jaspers acknowledges that jurisdiction over metaphysical guilt for
mass political violence lies with no court. As such, this easily abused concept reminds us of the
myriad ways in which our lives are entangled with, and may profit from, the suffering of others.
III. COLLECTIVE RESPONSIBILITY AND LEGAL JUDGMENT IN INTERNATIONAL LAW : THE
JASPERS ALTERNATIVE?
Ascertaining litigation for crimes reaching the dimensions of what Jaspers had in mind remains an
ongoing quest, starting with the precedents set by post-WWII trials. Indeed, the trial of major Nazi
war criminals in Nuremberg (1949) is considered a landmark event in the development of
international criminal law, and continues to be highly influential in our understanding of
international criminal law in post-conflict settings. The plethora of essays and manuscripts written
on the Trial, discussing key legal, political, and philosophical questions raised both at the time and
in historical perspective, are indicative of the crowned position it occupies in legal history. Those
involved in the tribunal, the establishment of the tribunal, the trial process itself, and the debate that
followed its judgment have all been subject to rigorous debate. Ranging from the contribution of
Nuremberg, to the substantive developments in international criminal law, to the philosophical
evaluation of legalism in post-conflict systems of justice, the persistent significance of Nuremberg
is indeed worthy of attention. Examinations of the Nuremberg legacy in contemporary international
criminal justice are already widely available.
However, the reason why I include a discussion of the Nuremberg Trials in this debate on collective
responsibility for mass crimes is somewhat different than what is covered in the canonized literature
on international criminal law. The Nuremberg Judgment is often counted as the benchmark in
international law for the definition and adjudication of individual accountability for human rights
abuses at a mass scale. In this sense, it did constitute a tipping point in the context of legal doctrines
concerning the nature of legal responsibility. Still, as I will argue in the following paragraphs, this
achievement did not alleviate Jaspers’ concern that, for such crimes, judgment cannot emanate from
the courtroom alone.
During the Trial, the concept of Nullum Crimen Sine Lege was put to the test of war crimes and,
despite a degree of inexactitude, both crimes against humanity and genocide have been retroactively
codified as a result. These developments in adjudication of international crimes were then followed
by the codification of slavery, forced labor, torture, forced disappearances, racial discrimination,
and apartheid as indictable crimes. In this sense, the Trial also redefined the notion of culpability
in international law. It introduced significant changes to our understanding of individual criminal
responsibility, and despite statutes of limitations and the reasonable time period clauses, it opened
the path for reinstituting the threshold of legal requirements for individual accountability for mass
crimes. Aside from its importance for the codification of societal and mass crimes in international
law, however, the Nuremberg Trial also forced us to address the problem of whether and on what
basis a successor government must prosecute the human rights abuses of a prior regime. Contending
that the rule of law and natural justice principles require that the very worst crimes be prosecuted
no matter what the rank and status of the accused person(s), Nuremberg judges proposed that
principles of international law, both in its customary and conventional forms, impose a duty to
investigate and prosecute in such extreme cases. This take on legality and judgment has been
accepted as a foundational premise for contemporary international criminal courts. However, in
terms of the defenses available for the accused in international criminal law pertaining to war crimes
and crimes against humanity, for instance, the generic standardization of prosecutions in national
courts as well as in international tribunals is causing an increasing number of problems, with
significant sociopolitical repercussions. The most important substantive defenses at the
international level include superior orders, command responsibility, tu quoque as a subcategory of
argumentum ad hominem, military necessity, proportionality, and reprisals. Jurisdictional defenses
applicable in national tribunals, on the other hand, include personal jurisdiction, subject-matter
jurisdiction, and double jeopardy. Then there are defenses concerning the issue of the location of
the tribunal or the trial, the status of the presiding judge or judges, and the legitimacy of the court
producing the judgment.
In this context, if we look at the victor’s justice argument posed about Nuremberg and Tokto trials
from the point of view of the victims, it is possible to posit that although forgiveness is often taken
to bear a close connection to societal reconciliation, there is a good deal of scepticism about its role
in situations where there is no consensus on the moral complexion of the past and no clear
admission of guilt on the part of the perpetrator. In other words, the convictionoriented framework
of these post-WWII Military Tribunals are indeed troubling for societal and political crimes.
Forgiveness without perpetrator acknowledgement aggravates the risk of recidivism, yields a
substandard and morally compromised form of political accommodation, and leads to the silencing
and patronizing of the victims, therefore potentially causing further social and political alienation
and victimization. Guilt becomes inscribed in the collective memory of nations as a dividing line,
but neither forgiveness nor true understanding emanates from the litigation of such crimes alone.
Hence the need to underline the importance of legal humility concerning mass violence as the
impetus for the penning of this last chapter.
IV. MORAL RESPONSIBILITY AS AN EPICURIAN CURE FOR THE CONUNDRUMS OF
INTERNATIONAL CRIMINAL LAW ?
From Epicurus onwards, the notion of moral responsibility based on a moral agent’s causal
ownership of his/her actions, as opposed to the agent’s ability to act or choose otherwise, has
troubled legal thinking. This is indeed the crux on which aforementioned Frankfurt examples were
built. It also relates to the puzzles surrounding Arendt’s view on the banality of evil and the
possibility/impossibility of the punishment of the unforgiveable. Epicurus considered it a necessary
condition for praising or blaming an agent for an action, that it has been the agent and not anything
else that brought the action about. Thus, the central question of moral responsibility was whether
the agent was a cause of the action, or whether the agent was forced to act by some other force.
Accordingly, actions are to be attributed to agents if it is in their actions that agents, qua moral
beings, manifest themselves. Here, the question of moral engagement becomes the most important
component of [criminal] acts, which significantly differs from the outcomes perspective discussed
above. In his narration of how humans become moral beings, Epicurus envisaged a complex theory
of moral responsibility and moral development, which could indeed find application in the area of
collective responsibility and mass crimes. Epicurean ethics does not have the function of
developing or justifying a moral system that allows for the effective allocation of praise and blame.
Instead, it looks at the choices people make regardless of the system they are surrounded by. On
the issue of free will and moral responsibility, Harry Frankfurt's argument that moral responsibility
does not require the freedom to do otherwise, linked with the debate over whether moral
responsibility is an essentially historical concept, indeed echoes the Epicurean call for deciphering
individual agency in collective acts. Thus, the central question of moral responsibility in the context
of mass crimes and societal violence becomes whether the agent was the cause of the action, or
whether the agent was forced to act.
Some instances of wrongdoing are of a distinctly collective kind. When, for example, one group
commits genocide against another, this is a collective act of crime in the sense that the wrongness
of genocide is morally distinct from the aggregation of individual murders that make up the
genocide. The problem, which I will refer to as the problem of collective wrongs, is that in
traditional criminal law, how to assign blame for distinctly collective wrongdoing to individual
contributors, when at least some of those individual contributors are not directly guilty of the
wrongdoing in question, is a question habitually left unclear. I have already offered Christopher
Kutz’s Complicity Principle as a starting point for solving this particular problem, although the
principle ought to be expanded to include a broader and more appropriate range of cases than Kutz
initially intended. The view I ultimately defend is that individuals are blameworthy for collective
harms insofar as they knowingly participate in or collaborate in the committal of those harms, and
that said individuals remain blameworthy regardless of whether they succeed in making a causal
contribution to those harms. This is a distinctly Epicurean take on societal crimes and opposes the
traditional outcomes oriented litigation methods. Suffice to say, however, I am not making this
suggestion for it to be incorporated into the relevant bodies of international criminal law. Rather,
the issue here is how to address mass crimes in a contextualized manner and with reference to forms
of justice other than restitution.
Regarding this issue of [criminal] intent, another prominent political philosopher of the post-WWII
era, Michael Bratman, made critical contributions to our understanding of the notion of intention
and how it relates to criminal action in particular. In Bratman's view, when we settle on a plan for
action we are committing ourselves to future conduct. The commitment involved in intending, and
its implications for our understanding of shared intention and shared cooperative activity, lead to a
richer discussion on moral responsibility. In the context of philosophy of action and moral
philosophy, issues about the nature of agency, intention and practical reason, free will and moral
responsibility, and shared agency are indeed much more easily brought to the fore compared to the
difficulties we may face with regard to discussing these in the context of philosophy of law. In this
sense, Bratman’s work Intention, Plans, and Practical Reason (1987) permanently altered the
landscape of both the philosophy of action and the theory of practical rationality by drawing our
attention to the complex, constitutive roles that intention plays in human agency. In particular, his
essays on shared agency are of utmost significance for the debate on collective responsibility.
If we accept Bratman’s description, the notion of collective responsibility would refer to both the
responsibility of moral agents for causing harm in the world and the blameworthiness we ascribe
to them for having caused such harm. Hence, it would assume both a moral and a causal
component. Criminal law does associate causal responsibility and blameworthiness with groups in
rare cases such as genocide and crimes against humanity, but for litigation purposes the line in the
sand is always drawn at individual culpability. Specifically, criminal jurisprudence locates the
source of moral responsibility in collective actions only if collectives were directly involved in
these acts of harm. Here, I beg to differ from this commonplace reference to the notion of collective
responsibility as derivative of an assumed group morality. I am also standing against the assumption
that collective responsibility violates principles of individual responsibility and fairness concerning
criminal attribution. On the contrary, collective responsibility—as well as group intentions,
collective action, and group blameworthiness—is a coherent construct, and can be ascribed to moral
agents fairly in cases of societal and political crimes. This attribution, however, does not have to be
punitive in nature.
My reservations about associating collective responsibility with group morality could perhaps be
explicated further in the context of the structure of the argument that was augmented by traditions
of religious thought, such as those found in the Old Testament (Tanakh) referring to the accounts
of the Flood, the Tower of Babel, or Sodom and Gomorrah, as well as the New Testament blaming
of Jews as an entire race for the killing of Jesus Christ. In these narratives, entire communities were
punished for their supposed deeds, and to set an example for the rest of humanity. In Biblical
narratives pertaining to the death of Jesus, for instance, the blame was cast not only on the Jews of
the time but upon all future generations to come. The core of these religious arguments relates to a
desire for communal forms of punishment for collective harms. No doubt, secular forms of this
logic are equally widespread and troubling. Post-9/11 trends of anti-Islamism and resultant public
policy measures are an all too familiar case in point. Collective responsibility translated into a
rationale for collective punishment is also regularly used as a disciplinary measure in military units,
prisons, and psychiatric facilities used for political crimes, such as those operated in Russia or in
the post-Guantanamo Bay United States. Without fail, these measures breed distrust and desire for
vengeance among the members of the punished group and their communities at large. These
punishment schemes are also commonly practiced in situations of war, based on the presupposition
of collective guilt. Collective guilt, or guilt by association, is a dangerous claim that assumes groups
of humans can bear guilt and should be subject to punishment above and beyond the guilt of
individual members. Luckily, contemporary criminal law operates on the principle that guilt shall
only be attributed to a legal person and not to a group or community. Keeping these intricacies and
problem-laden historical examples of attribution of collective guilt in mind, one must not equate
collective responsibility either with collective punishment or the collective assignment of presumed
moral failure to groups, communities or societies. However, this precaution should not restrain us
from seeking a substantive definition of collective responsibility for mass crimes either.
While the majority of debates on collective responsibility continue to deliberate on the very
possibility of it, a select group of scholars have ushered in two further concerns. The first has to do
with whether groups can meet stringent conditions of moral responsibility that individuals do.
Intentionality, as I touched upon briefly in the above paragraphs, becomes key in this context. The
second concern has to do with the advantages and disadvantages of holding particular kinds of
groups, such as communities or particular ethno-religious groups, or even states, morally
responsible in response to harm caused by their direct or indirect actions. One key example to
consider in this area is that of lustration. Often, after a regime-changing war, a state engages in
lustration in order to secure the condemnation and punishment of dangerous, corrupt, or culpable
members of the previous political system. Changes in the political structure of post-Apartheid South
Africa, post-WWII de-Nazification of Germany, or the recent deBa’athification in Iraq are
commonly referred cases of lustration. This common practice poses an important dilemma from the
perspective of how to define and put into practice collective responsibility, because even well
planned, legally sound, and nuanced lustration involves condemning groups of people. It also raises
important questions about collective agency and the rectification of historical injustices. While
group treatment might be justified on grounds of convenience and political peace in times of
transitional justice, there are also valid arguments consistent with due process requirements for
wholesale group punishment.
Concomitantly, I would like posit a theory of combined criminal and political accountability based
on an understanding of collective action and collective responsibility that not only allows for but
demands individual responsibility. In other words, instead of generalizing the sum total of
individuals as a collective, the causation I propose implicates a movement from the collective back
to the individual. No doubt, there isn’t a single, simple, and all-encompassing solution to the
problem of the relationship between individual and collective responsibility for wrongdoing and
harm. The one component that most obscures the fundamental requirement for ascribing
responsibility is that of moral agency. Closer attention to matters of individual and collective agency
may provide a defensible criterion for establishing when an individual is and isn't responsible for
the untoward consequences of a collective act.470 For instance, not only individuals but
organizations and institutions can act and exercise power, and thus could be deemed as accountable
for harm. This is possible because they possess decisionmaking structures that are formal. As such,
they could be deemed as “legal persons.” The actions of such legal actors are not reducible to the
actions of their individual members. Since these legal actors/agents could have acted differently or
could have been re-organized to change the course of their harmful acts, they could also be deemed
as morally responsible for the untoward effects of the power they exercise upon the larger
population. Thus, at least in principle, they are blameworthy and could be subject to legal
judgments. The ability to exercise power purposely, knowingly as opposed to recklessly or
negligently, reveals a particular disposition to abusing power, since it is concentrated and
institutionalized. Furthermore, I would argue that such legal actors’ disposition is not reducible to
the dispositions or degrees of blame of the individual members who participated in the internal
decision-making processes, or even those who led these organizations and institutions, which is the
dictum used for litigation against crimes against humanity, for instance. Instead, there is a need for
a larger discussion on the interdependent relationship between the individual and the collective in
upholding a system of abuse, harm, and danger. Here, the Epicurean cure for the conundrums of
the debate on moral responsibility comes to our rescue as the foreground allowing us to think about
intentionality and causal involvement in collective acts, and as a call to assume responsibility for
our own decisions to act or not to act.
V. COLLECTIVE RESPONSIBILITY AND THE DISTRIBUTION OF BLAMEWORTHINESS
Whether collective responsibility makes sense as a non-distributive phenomenon, that is to say
whether it transcends the contributions of particular group members, is a debate that remains pivotal
for legal theory. In this context, two claims are crucial. The first is that groups, unlike individuals,
cannot be accountable for intentions, and hence cannot act or cause harm qua groups. The second
is that groups, as distinct from their individual members, cannot be understood as morally
blameworthy according to the criteria required by moral responsibility argument. Accordingly, we
cannot isolate genuinely collective actions, as distinct from the identical actions of many persons;
and groups, unlike the individuals who belong to them, cannot formulate intentions of the kind
thought to be necessary to actions. Here, the main worry is about the fairness of ascribing collective
responsibility to individuals who do not themselves directly cause harm, or who do not bring about
harm purposefully.
If group intention is a necessary condition of attributing collective responsibility, the
question then becomes how it can be ascertained. In this context, collective behaviours are
separated from collective actions, the latter arguably caused by the beliefs, desires and wants of the
collective itself. As such, moral blameworthiness is grounded in the bad intentions of moral agents
who cause harm, in defining both individual and collective responsibility. If so, how can groups, as
distinct from their individual members, have bad intentions and demonstrate the ability to act on
them? Could entire communities be deemed as appropriate bearers of moral blameworthiness, guilt,
or shame? Critics of the collective responsibility argument concentrate on showing either that
actions are associated exclusively with individuals, not groups or communities, or that groups
cannot make choices or hold beliefs in the sense required by the formulation of intentions as defined
by criminal law. Meanwhile, these same critics pay much less attention to the nature of collective
actions. It may be true that collectivities may not have moral faults, since they don't make moral
choices in the way that is commonly understood. And yet, does that mean by default that they
cannot properly be ascribed moral responsibility for harmful actions that are only possible if and
when individuals act collectively?
At the other end of the spectrum, defenders of the collective responsibility argument feel compelled
to justify both the moral possibility of collective responsibility and the coherence of collective
responsibility as a moral, and hence possibly legal, construct. To start with, precepts of
methodological individualism are brought under attack. Accordingly, the collective blame that we
ascribe in mass crimes cannot be realized in terms of individual blameworthiness. Furthermore, as
exemplified by Larry May’s work, there is a class of predicates that can only be true of collectives.
May uses the relational theory of Jean-Paul Sartre to argue that groups can legitimately be ascribed
actions in cases where individuals act together in a manner that would not be possible if they acted
alone. On the issue of group intentions, however, the legal problem of ascertaining intentionality is
not easy to tackle, and it remains a threshold issue for criminal law-related determinations. If
intentions play a fundamental role in an agent's practical deliberation and volition, the prospect of
a shared intention introduces the specter of shared mental states. This is not included in the
standards of proof for criminal law litigation and for very valid reasons, as it would lead to
collective punishment.
If so, if the possibility of collective responsibility supposedly requires a collective mind, we might
as well give up on the notion of collective responsibility altogether. Groups can legitimately be said
to have shared beliefs and convictions, yet this is quite distinct from the proposition of a collective
mind-set. These convictions are otherwise known as institutional culture, ideology, political
movements, and so on. Hence, looking for a collective mind-set to ascertain collective
responsibility for societal harm and wrongdoings is not the business of criminal justice litigation.
And yet, it is a very important component of how to rebuild a sense of trust and societal peace in
the aftermath of mass crimes. In the area of political philosophy, in Raimo Tuomela and Kaarlo
Miller’s work these factors are named as “we intentions,” and they provide the springboard for joint
commitments and actions. According to Tuomela, actions by collectives build upon the actions of
the operative members of the collective in such a way that the properties of collectives, such as
their intentions, beliefs, and desires, are both embodied and determined by the perspectives of
individual members or representatives of the collective in question. This is an unusual intervention,
with very important implications for the production of legal judgments concerning collective
wrongs. Larry May similarly offers one of the most interesting arguments of this sort in his defense
of collective moral agency. Although he rejects accounts of group intentions that are tied to Kantian
notions of moral agency, he reformulates group intentions with reference to a theory of
interdependence and sociality.
Historically, for those who work on collective responsibility as a necessary notion for applied
philosophy, ethics, and legal theory, the focus has been on nations, corporations, and other groups
that have an institutional backbone and well-ordered decision-making procedures in place.
Organizational and institutional mechanisms through which courses of concerted action have been
decided upon and justified as rule-bound are deemed particularly important. Similarly, enforced
standards of conduct for individuals that are stringent and disciplinarian constitute an important
aspect of such forms of action. In turn, purposeful, planned and institutionally controlled actions
could render groups and communities collectively responsible for harm caused by their joint acts,
though most likely not in a criminal sense. In the case of social and political movements, as
discussed in detail by Joel Feinberg in his body of work on collective responsibility, there is the
added element of ideological directives and the resultant group solidarity leading individuals to
pursue projects together as a collective agent. All of these are aspects of a very germane debate on
collective responsibility that has been thus far overlooked by theories of international criminal law
pertaining to mass crimes, war crimes, and crimes against humanity. This is a deep chasm that must
be addressed without further ado, and this chapter has endeavored to provide a critical review of
some of the key connections already built in this regard.
CONCLUSION: THE DILEMMA OF THE SUM TOTAL VERSUS ITS CONSTITUTIVE PARTS
Since collective responsibility refers to the addressing of widespread harm and wrongdoing
associated with the actions of collectivities, groups, societies and institutional bodies, the key
components of its adjudication are directly related to constitutive aspects of social, cultural and
political life. While there is a broad, often tacit, agreement regarding the basic model of moral and
criminal responsibility when it is applied to individuals, there is considerable doubt, as we have
seen, about how this notion might be applied to collectivities and their members at large. First and
foremost, even the thought of adjudicating collective responsibility leads to disagreement about the
very conception of collective responsibility. One version maintains that only individual human
agents can be held morally and criminally responsible for harmful acts, while another conception
insists that groups, collectivities, and institutions can be held morally and criminally responsible as
collectivities, independently of their members’ individual actions. The former conception has, as
its departure point, the conviction that collectivities and institutions are capable of actions that
cannot be reduced to the actions and interests of their individual members. Yet this belief or
conviction alone does not render adjudication of collective responsibility a straightforward process.
It does, however, indicate that the courtroom alone is not the solution for mass crimes. Furthermore,
adjudicating egregious acts such as crimes against humanity does indeed require societal action and
willful participation, particularly if these litigation-oriented strageties of transitional justice are to
be pursued at the local and domestic level.
In this context, Joel Feinberg's now largely forgotten taxonomy of collective responsibility
arrangements constitutes a critical contribution to the exploration of issues regarding the culpability
of collectives and their members. In his classic treatise written back in 1970, Doing and Deserving,
Feinberg presents four distinct responsibility arrangements: (a) “Whole groups can be held liable
even though not all of their members are at fault”; (b) “A group can be held collectively responsible
through the fault, contributory or noncontributory, of each member”; (c) “Group liability [could be
attributed] through the contributory faults of each and every member”; and (d) “Through the
collective … fault of the group itself [the collective] bears liability independently of its members.”
If we are to consider each of Feinberg’s constructs in order to reach a conclusion pertaining to the
justiciability of collective acts leading to harm, the complications involved need to be adequately
addressed.
In Feinberg’s first case, if a whole group is liable for the faulty and harmful actions of one or
several members of the group, there must be the accompanying assumption that this sort of
collectivity possesses a significant degree of solidarity. No doubt, this presumption stands against
the ideal of individual responsibility and autonomy. Punishment of all for the wrongdoing of a few
is not defensible on moral or legal grounds. For both goods and harms to be defined as collective
and shared, would promotion of a mutual sense of collective destiny suffice? Looked at through the
lens of justiciability, the answer is negative. Courts often invoke one of the justiciability doctrines—
standing, ripeness, and mootness—to bring potentially important public litigation to a definite
conclusion. According to orthodox understandings of justiciability, these doctrines disempower
courts from deciding certain kinds of cases. Of the three, mootness is the most relevant for our
purposes, as it has the strongest moral moorings in terms of law’s compass in society. Collectives
are not punishable where individual autonomy is held as a supreme value in the constitutional order.
Furthermore, constitutional schemes often create a presumption in favour of preserving a degree of
legislative control over jurisdiction. In the case of collective responsibility, courts would need to
transform mootness from a constitutional doctrine into a prudential doctrine that would enable them
to decide otherwise “moot cases” whenever a decision would help give true and concrete meaning
to important public values. That is, however, an idealistic future projection rather than the present-
day reality of litigation for societal and political crimes.
Furthermore, in a standard criminal law setting, arrangements in which the whole group is
punished for the faults or wrongdoing of a few constitute vicarious liability, and a person punished
on account of another's wrongdoing is said to have been punished vicariously. Vicarious liability
squarely conflicts with individual moral responsibility and, of course, the principle of individual
accountability for criminal acts. For litigation purposes, vicarious attribution of group or collective
liability is an arrangement unsuitable for most forms of harm or wrongdoing. However, the issue is
not so clear when we are dealing with the actions of state institutions, for instance. In this changed
setting, Feinberg's second arrangement of collective responsibility comes into the picture, which is
based on the examination of implications for a group of individuals sharing a common agenda, or
who could possibly have engaged in a similar harmful act. As such, the ascription of criminal or
moral responsibility requires that an act causing harm has actually occurred rather than simply been
intended.485
To conclude, as I have discussed thus far, legal-philosophical debates in the field of
collective responsibility clearly prove that an exaggerated conception of fault and responsibility
could easily lead to the ascription of blameworthiness to groups and communities without having
a solid ground for justiciability. This is clearly observable in Feinberg’s categorizations, which
constitute one of the finest examples of the legal-philosophical analysis of collective responsibility.
If so, formal organizations, such as business corporations, nation-states, armies, or public
bureaucracies appear to be the only legal actors to which we could accrue justiciable forms of
collective responsibility. That locks us back into the problem of responsibility being allocated only
to formal units and their representatives thereof, and leaves us astray when it comes to societal
accountability for mass political crimes.
Whether a true and systemic rectification of injury and harm aiming for corrective justice is
at all possible concerning mass political crimes thus remains as a very troubling question. By whom
justice must be performed is where almost all attention seems to have focused on up until now. If
the injuries in question are divided into components of harm and wrong, each component’s
rectification would have to be considered separately. Although pecuniary compensation for such
harms is practically plausible, money cannot act as a mediator between severely damaged lives and
abusers of political power. Not all harms could be compensated, nor can it be said that when
compensation is paid, the status quo ante should be restored. There is no normative or conceptual
reason for compensation to remedy societal harms. On the issue of the wrong, on the other hand,
standard methods of rectification may or may not work, depending on the specific context of the
injustice in question. For instance, to correct wrongdoing by rectifying harm may not be at all
possible in the event of mass civilian deaths and disappearances. Deploying only punitive damages
may not be of much benefit for thousands or millions of displaced populations, either. The third,
most common option embraced by international criminal law, individual incarceration and
punishment, remains by and large symbolic. There may well be a need for an admission of causal
and moral responsibility, public and institutional repudiation of
and Liability” (2012) 24 Utilitas 259; and Joanna Mary Firth & Jonathan Quong, “Necessity, Moral Liability and
Defensive Harm” (2012) 31 Law and Philosophy 673. The last two articles build upon Jeff McMahan’s work on
justified killing at times of war, which sets out a number of conditions for a person to be liable to attack, provided the
attack is used to avert an objectively unjust threat defined in the following terms: (1) The threat, if realized, will
wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to
avert the threat; and (4) killing the person is a proportionate response to the threat. See Jeff McMahan, The Ethics of
Killing: Problems at the Margins of Life (Oxford University Press, 2002).
the criminal act, substantive reforms at the state level, and, in some cases, disgorgement and
reparations to be performed as a sign of a good faith effort to share the burden of the victims’
suffering by the society at large. Although these cannot be forced onto members of the society, the
state and its institutions are obligated to take an institutional lead in this regard. However, how
much of a restoration these measures would lead to is truly dependent on how the society at large
deals with the issue of collective responsibility for mass crimes in a non-criminal sense, as well.
In this vein, this chapter has offered a refutation of the litigation-heavy focus of international
criminal law as it has been applied to mass societal and political crimes. Instead, it embraced the
view that if so used, criminal law essentially becomes a stunted system of corrective and
restitutional rather than restorative justice. The concept of corrective justice is neither capable of
offering solutions to society-wide problems nor is it poised to deliver restorative justice for
historical wrongdoings. Rather, what is required in instances such as crimes against humanity is an
essentially protective function and a future-oriented vision. The aim is the protection of legal
subjects and valuable social interests from such harms in future. Here, I have also tried to address
the question of whether a statute of limitations on a historical injustice is morally justified. In
essence, rectificatory justice calls for the ascription of a right to ask for rectification once an
injustice has been perpetrated, without reference to a set time frame. To claim a statute of limitations
on historical injustices amounts to inserting a temporal limit on the legitimacy of rights to
rectification—a set amount of time following injustice after which claims of rectification could no
longer be considered valid. However, since ascribing a right to rectification for an injustice is a
requirement of fundamental justice, and since the temporal limit called for by a statute of limitations
on injustice is a constraint on that requirement, the idea of a statute of limitations on historical
injustices is morally justified only if one has substantive reasons for accepting this constraint, such
as the establishment and maintenance of societal peace.
As a footnote to this entire debate, in legal philosophy there is a peculiar argument that has
been widely applied to substantiate the validity of claims for historic justice. It is known as the
“non-identity argument.” Accordingly, the harm to descendants of historically wronged peoples
could be explained away not as deriving from the historic wrongs, but from the failure to provide
rectification to the previous generation for the harm they suffered. In this chain of injustices, each
failure to provide rectification becomes the source of wrongful harm to the next. Non-identity
philosophers argue that such chains form a bridge between the historic wrong and the harm suffered
by living individuals today. In other words, past wrongs, for which original wrongdoers are
responsible, harm descendants of original victims. Still, how do we distinguish claims of
descendants of historic victims and claims made by others with unrelated interests in the
rectification of the previous generation? A supplementary solution may be offered in the form of
focusing on group harm and group membership. This approach ties individual harm to group harm
rather than limiting justice claims to individual restitution or compensation. For instance, did
slavery not harm the descendants of slaves? This is the classical example proving the shortcomings
of the individual responsibility argument applied to reject the validity of claims for historic justice
based on harms to descendants of victims of historic wrongs. According to the individual
responsibility argument, if descendants are never harmed directly and personally by historic
wrongs, they have no right to ask for rectification. This conclusion may be legally sound but it is
morally unintuitive and must be debunked.
To conclude, due to the extensive nature of harm involved in historic injustices, one must
try in earnest to overcome the hurdle posed by the individual responsibility argument wielded
against justice claims. Many of the crimes adjudicated under the aegis of crimes against humanity
do constitute or lead to historical injustices. These forms of injustice and the harms they generate
are best understood as group or collective harms. The response to group harms has to have a
collective component as well, because the remedies offered are again only meaningful in a social
and political context. Claims for justice under such circumstances have to be grounded in harms
currently suffered by living individuals as a function of the harms their group or community were
subject to as part of historic wrongs. One common form of such harm, constitutive harm,
significantly differs from the aggregative accounts of harm generally used by standard individual
Derek Parfit, Reasons and persons. (Oxford University Press, 1984); James Woodward, "The non-identity problem"
(1986) 96 Ethics 804; Doran Smolkin, "The Non-Identity Problem and the Appeal to Future People's Rights" (1994)
32 The Southern journal of philosophy 315; Derek Parfit & Samuel Scheffler, On what matters: volume one (Oxford
University Press, 2011).
criminal litigation processes. Constitutive harm could not be addressed in that limited context at
all. It is the type of harm people suffer as members of historically wronged groups and communities.
Therefore, historic injustice cases require a different account of responsibility, one that cannot be
harnessed solely based on individual responsibility argumentation within the context of criminal
justice jurisprudence. With all the reservations carefully examined in this chapter, we must make
room for considerations pertaining to collective responsibility as a moral obligation, providing a
context within which legal judgment should be firmly situated, though itself not catapulted to the
status of a criminal charge.
This chapter might at first seem as an aberration in terms of both its methodology and its
subject matter vis-à-vis the core subject matter of this dissertation: universal jurisdiction and
adjudication of crimes against humanity. However, the frame within which these two issues are
debated throughout includes the parameters of “limitations” and the “Global South,” which changes
the tenor of the arguments made and encourages a layered and historically informed understanding
of how international law works in settings wherein it assumes a very problemladen identity. In this
regard, I believe it is apt to look for societal and political sources that establish or increase the
legitimacy of criminal litigation against mass crimes and societal violence from within as well as
through the use of international jurisprudence concerning egregious acts such as crimes against
humanity. This latter, I believe, could significantly benefit from an integrated discussion of
collective responsibility in a non-criminal sense, as a foundational tenet of establishing the
normative grounds for the desirability of trials and courts that attend to state criminality locally and
regionally.
In Lieu of Conclusion: Deliverance of Justice in International Criminal Law and the Role of
Political Judgment as Purposive Action
...time shall in fine out breake
When Ocean wave shall open every Realme
The wandering World at will shall open lye,
And Thyphis shall some newe founded Land Survay Some travellers shall the Countries
farre escrye, Beyond small Thule, known farthest to this day.
Seneca, Medea (from the John Studley translation of 1581)
Taken from Seneca’s tragedy Medea, these lines have become symbolic of a prediction that
a “new found land” will indeed appear, discovered across the ocean by travellers, located far beyond
the edges of the known world. This utopian impulse, or the commitment to and desire for imagining
a different, better, or even perfect society is nothing new. In fact, there is always a dramatic increase
in expressions of such a utopian impulse when times get harder. This “New World” of Seneca’s
could take many forms, as it offers the potential actualization of novel ways of doing things, seeing
things, and understanding anew. From Platonic dialogues to architectural treatises and plans, from
literary and theatrical works to historical documents and legal texts, expressions of a yearning for
what we are told we cannot have find their way by myriad means into our existing order of things
as an outcry.
Law and its ethos and pathos constitute a triplet that looks perhaps rather unlikely at first
sight as a harbinger for a utopian impulse and a desire to transcend existing delimitations of legal
regimes. They have a fundamental connection: all three have the common function of imposing
structure and discipline while striving for the creation of an ideal order. As so clearly heralded by
Plato’s late dialogues many centuries ago—namely Timaeus, Critias, and the Laws—in which he
outlined the characteristics of the ideal society and of a divine creator as the architect of the
universe, the yearning for a transformative ideal in the form of law has become a foundational
belief. Indeed, while Timaeus, Critias, and Socrates are talking about the ideal society, Socrates
wishes to see this ideal in action and find out if it works. Critias tells him that Athens once was this
ideal society. He heard that from Solon, who heard from an old man, who heard from an Egyptian
that Athens was that ideal at the time they defeated Atlantis. Having no writing, the Athenians
forgot this and are learning it all afresh. Timaeus then suggests that the world is a receptacle into
which images of the eternal forms are stamped. Thus, physical things are copies of the eternal
forms, and these copies are continually decaying though their essence remains. Then comes the
place for Law. These late dialogues suggest that Athenians who defeated Atlantis have degenerated
to the extent that their laws and thoughts moved away from the original divine form. The Platonic
hope is that the essence of things could be restored and preserved by creating pure laws and
institutions to fight off any diversion from the spirit of the divine presence.
These dialogues, as distinct from anything law-related as they may appear, speak in a
language that one often hears about erga omnes crimes and jus cogens norms in particular, and
customary international law in general. So does something even more remote from international
law, the Ten Books of Architecture by Vitruvius, which display his belief in perfect geometric shapes
forming the basis for universal order. The Renaissance embellished this idea of “perfect reflection”
further to include the human form: Leonardo da Vinci and Cesare Cesariano illustrated it in what
is now known as “Vitruvian Man,” based on Vitruvius’ discussion of the proportions of the human
body inscribed in a circle and a square. From Plato onwards, the ideal city, the ideal state, the ideal
order have always hinged upon a very strong sense of the existence of a self-contained order
expressed in pure laws.
In the opening chapters of this dissertation, I argued that recent scholarship on theories of
international law with an interdisciplinary bent attributes the post-Cold War rejuvenation of interest
in international law to at least two kinds of developments. On the one hand, I argued that “critical
legal scholarship” has reshaped the discipline so profoundly that it has indeed provided it with new
sensibilities and perspectives, thus rendering it desirable for a variety of other disciplines and
discourses. On the other hand, I asserted that younger generations of international law scholars have
succeeded in reaching out to international relations scholars and linked their work with theirs,
forming a relationship which led to a recasting of the way in which legality, jurisdictional
capabilities, and the state as a legal actor are approached. In the end, however, the realization of a
full-fledged reconciliation and dialogue among these disciplines is far from an easy task. The
increasingly textured, adversarial and divisive debate about how to approach the study of
international law should be regarded as an indication of how Herculean such an attempt is. In this
work, I have hoped to contribute to this (ongoing) debate by focusing on common conceptions
pertaining to the ideal of the state and what they leave behind, the residue, so to speak.
Deliverance of justice is a central, and yet another highly contested, element in theories and
debates on international law, particularly as far as international courts are concerned. As the justice
claims of non-state actors increasingly clash with the largely statist basis of existing legal practices
and institutions pertaining to the transnational level, it is again becoming increasingly critical that
we question the role of international organizations, including the Courts, in creating and sustaining
the illusion of a perfect global legal order.
As this detailed and multifaceted debate on the jurisprudential merits of international
criminal law in the area of crimes against humanity proves, international organizations including
courts such as the ICC will have to reconstitute some of their authoritative practices and render
them open to the motives of both new and previously marginalized legal actors. Furthermore,
international organizations have to be open to potential norm change and evolution based on claims
unaddressed in the past, as well as claims related to current and newly emerging forms of injustice.
This is notwithstanding the limited capacity of existing international organizations for realizing
such claims. If and when they cannot do the job, alternative models of adjudication should be
welcome as a true feature of the fragmented regime of accountability, with both fragmentation and
poli-centricity characterizing the essential nature of international criminal law.
I have also argued that the institutional masking of the hegemony of certain key actors
within the international legal domain—needless to say not only core states—creates a blind spot.
International organizations have in the past, and might again in the present, become the bulwark of
hegemonic privilege.491 Last but not the least, the tempering of conflicting interests by judicial
idealism does not guarantee that an international organization can or does provide a sufficient,
widely recognized, and inclusive mechanism for dealing with the justice-related claims of different
actors. Ongoing conflicts in global politics are carried onto the institutional and organizational
realm as well, and bodies such as international courts constitute no exception to this phenomenon.
As posited throughout this dissertation, normative theories of international law at least
promise to adequately address these critical questions regarding the deliverance of justice.
However, a distinction is to be made between the deliverance of justice as a motive and as an
authoritative legal practice. Accordingly, some international organizations aim at raising the
491 On this issue, Steven Ratner’s The Thin Justice of International Law offers a comprehensive interdisciplinary theory
of international law’s relationship with global justice. Ratner argues that the justice of legal norms that constitute our
international legal order should be determined according to two criteria: the degree to which they causally bring about
international and intrastate peace; and the degree to which they causally bring about a state of affairs in which basic
human rights are respected. However, I disagree with Ratner’s commitment to rule consequentialism, his treatment of
the state system as a fixed attribute of our international legal order, and his particular embrace of a political conception
of human rights. In particular, Ratner’s commitment to rule consequentialism leads to the possibility that pillars of
global justice might give way to more fundamental moral concerns relating to the attainment of human welfare and
human flourishing. Similarly, his commitment to the state system as a fixed attribute of international legal order results
in a conception of international law as a rigid system. Consequently, questions relating to international law’s
distribution of sovereignty — its origins, the episodic recalibrations to which it is subject, especially during and after
times of war, and its distributional consequences remain outside the normative sphere of global justice. Finally, Ratner’s
endorsement of a political conception of human rights does not protect international law from a zealous aspiration to
organize global politics into an international legal order. Human rights that speak to the mitigatation of some of these
consequences —such as fullfledged transitional justice schemes—merit recognition for the instantiation of global
justice. See Steven Ratner, The thin justice of international law: a moral reckoning of the law of nations (OUP Oxford,
2015).
specter of lack of just practices in given areas of international law, while others such as the ICC are
built upon the premise of deliverance of justice according to established legal norms and practices.
Why states and other international actors would seek the construction of institutions that can
authoritatively settle disputes about rights and entitlements is not the issue here. On the surface, the
international legal obligations of a state are overwhelmingly based on its consent. This formal
commitment to consent supposedly preserves the power of states, though with a bias towards the
status quo. Historically, the regime of international law has not been equitable to all states that are
a party to it. International law, given its background, has developed a variety of ways to live with
the problem of consent. The expectation from international criminal law has been for it to overcome
this hurdle via normative prerogatives such as those exemplified by universal jurisdiction for crimes
against humanity. Meanwhile, when states establish international organizations such as the ICC,
they create an institution with a life of its own. There is always the risk that the institution would
develop its own interests. How much of the existing landscape of international criminal law has
been formed by state responses to acts such as crimes against humanity is somewhat dubious.
Rather, what is at stake here is life after the ICC for international criminal law. As Kantian
scholarship in this area has long insisted, seeking a legalized and institutionally guarded regime of
accountability to constrain others has direct benefits in terms of avoiding random warfare in an age
where such wars tend to bring more damage than profit. In this context, justice delivered via
international criminal law is considered a virtue. This peculiar understanding of political order
relies on standardized expectations, procedures and entitlements. There is no power in it, or no
outright conflict. This brings us back to the longings we hear in Seneca’s play Medea: “The
wandering World at will shall open lye…”
It has also been commonly argued for decades that the essence of any meaningful and
reasonable idea of international governance is the expectation that international law will be
primarily about the rules and procedures that allow states to coexist. This take on international law
and its engagement in the deliverance of justice is quite similar in its logic to the way constitutions
are defined as frames within which societies and polities can accommodate change and conflict
without breaking existing political systems apart. Why, then, is international law often deemed to
be “practical” rather than purposive—and thus its organs portrayed as standing in contradistinction
with the institutions through which the laws of national political communities are created? Is it not
so much a maker as it is a protector of the status quo? Even the jus cogens norms and erga omnes
crimes do not constitute major exceptions in this sense. Consequently, in international criminal law
justice is defined mainly in formal procedural terms. Bodies such as international courts become
limited to clarifying the procedures to be observed by states and other international actors in the
event that their actions fall under the purview of international law. There is very little room left for
political judgment or norm creation to enter the debate, even concerning critical instances that
challenge the founding pillars of the entire state system such as crimes against humanity. In this
work, I have inquired about whether it is possible to strike a balance between normative and
deliberative purposefulness and authoritative jurisdictional practices in international criminal law,
in such a way that its legislative prowess is not just “effective” but also legitimate. My examination
of the limits of the application of universal jurisdiction in the context of crimes against humanity
and particularly in the Global South was a testimony to the intrinsically challenging nature of such
yearnings. This problem of disjunct between what legal theorists such as Hart named as primary
and secondary rules is endemic to the dominant statist model of international law, and bars our
vision from seeing it for what it is-– a transnational and fragmented enterprise. Especially in the
last two chapters, I posited that the whole array of non-state, transnational, individual, regional and
communal actors have to be brought into the discussion concerning the legitimacy of jurisprudence
produced by international criminal law and international courts. Acknowledgement of the wider
plurality of political actors, as well as forms of legal and political action, is essential for achieving
large enough scope of applicability for models of deliverance of justice beyond the confines of
international courts. Needless to say, addressing this plurality alone cannot override the normative
centrality of the state in international criminal law. However, as I indicated throughout my debate
on hybrid courts, formal international criminal law is stagnating in its universalistic claims.
Particularly disconcerting is the status of the treatment of injurious acts such as crimes against
humanity, which have implications for the past, present and future of whole societies.
In this vein, I argued that rather than crowning the achievements of international bodies
such as the ICC as the ultimate point that international criminal law could reach, we must pay closer
attention to “informal lawmaking” that involves new actors, new processes, and new outputs
concerning the most heinous forms of state criminality. On many occasions, existing institutional
structures of formal lawmaking have become shackles rather than instigators of judicial processes,
hence the emergence of bodies such as hybrid courts or regional mediation mechanisms. The
validation requirements of traditional international criminal law as it is spread through centrifugal
adaptation of the Rome Statute have to be rethought. Crimes against humanity legislation adapted
to local realities by hybrid courts and regional organizations vividly prove this point. It is erroneous
to use the example of the Belgian courts as the test case for universal jurisdiction, as Belgium is a
European country with its own heavy history of colonial crimes and involvements. To recommend
that this example should be followed in India, Russia, China, Brazil, Uganda, Turkey, etc. only
points to the continuing blindness of dominant international law scholarship to both the history and
politics of how our post-WWII universe of state system was built, and at what costs it is maintained.
If the ultimate criterion by which to evaluate the deliverance of justice at the international platform
is to see how many legal borders have been crossed, rather than what substantive benefits it can
provide for societies, perhaps international organizations such as the ICC could be construed as
effective in their mandate. However, the closure of justice claims as well as methods of deliverance
within this model remains problematic for several reasons. In this work, I have presented these
issues in detail, highlighting the necessary involvement of political judgment in the alignment of
international and domestic law. This is essential for widespread endorsement and application of the
current legal codification of crimes against humanity to become possible. In my view, it is a base
requirement for international criminal law in this area to become purposive rather than remaining
formalistic. Finally, the shift of focus I suggested in the above pages is also meaningful from the
point of view of posing challenges to conventional configurations of power, authority, legality, and
legitimacy at both national and international levels.
The development of a justice-based dialogue above and beyond the confines of the
sovereign state is possible only via political deliberation, legal arguments keen on persuasion rather
than dictation, and the endorsement of multilateral legal premises rather than a monist or dualist
legal framework in international criminal law. Both statist and purely intergovernmentalist models
of international law require that demands for justice be either channeled through domestic policy
processes, or appropriated within a top-down process of international jurisdiction. In the specific
case of crimes against humanity, there are widely observed and profound structural tensions
between the human rights and humanitarian norms introduced into the framework of international
law since World War II, and the Westphalian order according to which such norms are expected to
be pursued. According to the existing model, international criminal law jurisprudence is attempting
to adjudicate the crimes committed by the very actors that it protects, i.e. the state, by asking them
to come to international courts or local courts of other states empowered by universal jurisdiction
in the event these states fail to try their own leaders. In this sense, I believe the word ‘transnational’
continues to escape universal jurisdiction debates. Yet when it comes to issues such as crimes
against humanity, how could such an argument be maintained: that human rights and human dignity
must be met within the parameters determined by the limits of either the “national” understanding
and domestic jurisdiction of such crimes, or via litigation sought in the chambers of a distant
international court or a European domestic court such as the Belgian ones, armed with universal
jurisdiction? This is precisely the conundrum that triggered the methodological investigations and
conceptual worries presented in this work.
As signaled throughout this dissertation, a post-statist and transnational conception of
international law and international organizations no doubt helps the matters a great deal. However,
this approach is heavily indebted to sociological theory and tends to keep its distance from legal
enterprises such as international courts. At least as far as international criminal law is concerned, I
strongly believe that we need to include both realms and think deeply about their present and
possible future interactions. Ideally, in this new setting, the justice motives of a variety of actors
beyond the state would become favourable to international law scholarship. However, the static and
authoritative perception of law in this field often acts as an impediment for such a hybrid and well-
endowed understanding of [global] justice. It is as if legal debates about the deliverance of justice
are utterly uninterested in dealing with moral dilemmas, ethical concerns, normative reflections,
and political deliberations.
By introducing the notions of political judgment and collective responsibility for state
criminality as necessary components of the debate on the deliverance of justice in international
criminal law, this work exemplifies a concerted effort to bypass the dichotomy between the
domestic and international spheres that is essentialized by the statist model of international law.
Just as values and norms are affected by a wide plurality of actors and political forces both within
and beyond states, so are the actual workings of international law, including international criminal
law. There is very little reason to assume that international criminal law is purely formal and
structurally sealed from the purposive claims of various political agents and legal actors. The crucial
matter concerning the category of legal norms such as those pertaining to crimes against humanity
is not so much the presence of value plurality that they have to address, but whether there are limits
and thresholds beyond which their very existence loses its validity. Whether these limits can be
established based on deliberations among different parties, or whether such an agreement needs to
be nurtured and fostered via normatively purposive international organizations such as the ICC, is
a real matter of concern for the future of international criminal law. Given the weight of its subject
matter, international criminal law cannot turn its back on voices of dissent, particularly those
emanating from communities who currently suffer the most from state brutality and politically
organized forms of criminality, which are no doubt not limited to those nations in the Global South.
In this regard, ad hoc and hybrid tribunals’ jurisprudential contributions, their extra-legal impact
and legacies, and the intrinsic relationship between transitional justice projects and international
criminal law have to be brought into the canonized debates. The concept of state legacy is itself
contested and the appropriateness of international courts’ (such as the ICC) efforts to consolidate it
must be questioned. As attested in the pages of this work, a conceptual critique of the history of
international criminal law pertaining to the legislation of crimes against humanity also provides an
opportune moment to reflect upon the work of both international courts and hybrid courts, ad hoc
tribunals and other transitional justice mechanisms, with a view to enriching the debate by the
inclusion of more voices and with an ear on the ground for historic grievances.
On a final note, I would like to conclude this treatise on a hopeful note for the future of
international law scholarship pertaining to expanding circles of application of universal jurisdiction
in the context of crimes against humanity. In a series of speeches and occasional essays delivered
in 1999 and 2000, Pierre Bourdieu, one of France’s leading sociologists of culture, called for a new
European social movement to unite existing and future unions, new social movements, and
intellectuals to struggle against globalization. In his outcry, Bourdieu denounced numerous evils of
globalization, especially its guiding philosophy of neoliberalism, and he sketched specific roles that
writers, scholars, artists, and research workers—otherwise known as Bourdieu’s “intellectuals”—
could play in this new composite movement. While this call to arms is not without contradictions,
it offered encouragement to intellectuals to join the working classes (unionized and not), farmers,
the unemployed, immigrants, activists, students, and militants to struggle against the depredations
of the new world order. For Bourdieu, as for many other critics of globalization, what is particularly
vexing is the recent retreat of national governments from funding welfare, medical care, housing,
public transportation, education, and, of course, culture. The neoliberal focus of the past few
decades on privatization, deregulation, and self-help, characteristic of the economies in the Global
North but also becoming widespread policy initiatives in the Global South, argued Bourdieu, were
unabashedly supported by international organizations such as the World Bank, International
Monetary Fund, and World Trade Organization (WTO). The quest for maximum short-term profits
and reduced expenditures is seeping into the everyday life of citizens in an exponentially increasing
number of states and creating a perpetual condition of insecurity. Ironically, noted Bourdieu, the
transnational spread of this neoliberal social insecurity provides a solid and tangible foundation for
a new form of politics.
If one was to echo this quintessential call to unite all possible forces against unjust practices
endorsed by institutions of global governance and against entrenched state criminality, whom could
we call upon? Surely, the work of Pierre Bourdieu offers a potentially productive way to practice
research in international relations. Does it also offer clues concerning how to practice international
legal scholarship and advocacy perhaps with less jurisdictional certitude but more moral conviction
and normative involvement with global injustices perpetuated by the very states that international
criminal law deals with in such a circumscribed manner? Bourdieu’s work explores the alternatives
in such a way that academia is invited to refuse an opposition between general theory and everyday
life. His preference for this relational approach acts as a protective shield against two of the biggest
handicaps affecting academic work in the area of international criminal law, as well: namely,
essentialization and ahistoricism. In order to untie state centrism and to discuss the possible
adaptations and transformations of international criminal law, we must show the courage to reveal
the power relations hidden beneath the perfect spectre of universal jurisdiction at national,
subnational, and transnational levels. This dissertation attempted to do so within the specific context
of the applications of the normative framework of universal jurisdiction to crimes that fall under
the aegis of crimes against humanity, both within and beyond the confines of the ICC. Its findings
encourage us to renew the debate on the growing network of international law institutions and the
underpinnings of the transnational legal regime of accountability from the lens of an important web
of regional, national, and subnational authorities and spaces along with non-governmental
organizations, political movements and civic initiatives. These developments seriously undermine
the substantive claims of a centrifugal theory of international [criminal] law. The complex nature
of the transnational dimensions of universal jurisdiction as it pertains to some of the most egregious
crimes committed by states against their own people or in lands where they reside as occupying
forces renders such a change of optics necessary in both the short and medium terms. Amidst the
rising tide of seeking justice for political and mass crimes, using the rubric of international criminal
law for the questioning of individual responsibility for societal crimes at the local and domestic
levels has indeed been a very important first step in that direction. This issue has been explicated
in depth in my discussion on hybrid courts and other mechanisms that do not rely on the direct
involvement of an international court such as the ICC in matters concerning states and societies in
the Global South. However, I also urge the reader to take one more step forward and extend the
normative frame of reference used to adjudicate crimes against humanity in the direction of a
rejuvenated debate on the notion of collective societal responsibility for mass crimes. The resultant
opening up of the horizon of jurisprudential scholarship in such a way as to allow for concerns
about transitional justice and overall socio-political transformation of the societies in question
would not erode the basis of universal jurisdiction in international law. On the contrary, it would
engender new debates about its usefulness in domestic and local settings and thus introduce the
elements of choice and volitional consent in the Global South for future uses of international law
jurisprudence.
Only then, would the prediction of Seneca I cited in the opening of this conclusion find true
meaning in international law scholarship: “...time shall in fine out breake / When Ocean wave shall
open every Realme…”
