The Oxford Research Encyclopedia of International Studies will be available via subscription on April 26. Visit About to learn more, meet the editorial board, or recommend to your librarian.

Show Summary Details

Page of

PRINTED FROM the OXFORD RESEARCH ENCYCLOPEDIA, INTERNATIONAL STUDIES ( (c) Oxford University Press USA, 2017. All Rights Reserved. Personal use only; commercial use is strictly prohibited. Please see applicable Privacy Policy and Legal Notice (for details see Privacy Policy).

date: 20 March 2018

International Organizations and Criminal Justice

Summary and Keywords

One of the primary goals of the United Nations (UN) is to provide justice. The vast majority of mentions of “justice” in the UN Charter relate to the creation of the International Court of Justice (ICJ), one of the UN’s five principal organs. However, this body is not empowered to take cases on behalf of aggrieved individuals or even to prosecute individual malefactors. Rather, it is “justice” for states that is its goal. Meanwhile, the treaties signed at the 1948 Peace of Westphalia radically delimited the arena of international affairs. Most importantly, Westphalia held as paramount the noninterference by other states in the internal affairs of other members of the international community. Rejecting the logic of Westphalia, the notions of “humanitarian intervention” and the “responsibility to protect” refer to the legal right and/or obligation for a state to interfere in another state for purposes of humanitarian protection. Consequently, the UN established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in order to address the carnage ongoing in the Balkans, as well as the International Criminal Tribunal for Rwanda (ICTR), which targeted that country’s 1994 Hutu–Tutsi violence. Meanwhile, the International Criminal Court (ICC), a non-UN institution, is the first permanent international tribunal devoted to justice in the wake of mass crimes. Each of these post-Cold War international tribunals have been concerned with the enforcement of International Humanitarian Law (IHL). Ultimately, however, the international community continues to hold fast to central elements of Westphalian protections.

Keywords: United Nations, justice, International Court of Justice, 1948 Peace of Westphalia, humanitarian intervention, responsibility to protect, International Criminal Court, international tribunals, International Humanitarian Law, international community


Consider the following paradox:

The United Nations and the wider international community of nations have been both the biggest supporters of and the primary obstacles to obtaining justice for the victims of mass atrocity.

At first blush this seems incorrect, especially in the recent past. After all, since the beginning of the 1990s, the scope of international support for justice in the wake of mass crimes is expansive. The number of tribunals established by the international community to provide such justice is impressive and the application of human and financial capital to the enterprise has been equally so. Yet, this essay will demonstrate that despite the growing number of and investments in these courts since the end of the Cold War, the proliferation of internationally supported judicial entities shows not a full-throated support for international justice, but rather an ever more skeptical international community, willing to establish only very cabined institutions. The international community has held fast to fundamental aspects of state sovereignty and has increasingly refused to cede the powers needed for an international justice system to become fully realized.

This essay will describe this progression and analyze the history and logic behind the tense relationship that exists between the international community of states and the international justice to which so many appear to be committed.

The International Judicial Edifice

After a series of false starts following World War I, the end of World War II finally saw the start of a real, international criminal justice system (Bass 2002). With Nuremberg and the Tokyo Trials taking center stage and bringing to light both the crimes committed by the defeated Axis powers and the possibility of judicially addressing the malefactors, it seemed that the world was entering into a new era of international criminal accountability. However, the Cold War would stymie progress toward such an end and international criminal justice entered into a decades-long hibernation, paralyzed by the intransigence of the Cold War’s great powers. It was only after the Cold War ended that the search and hope for international justice returned to life (Cryer 2005:50–1). And by any measure it would seem that the international community was quick to make up for lost time.

If one solely looks at courts and judicial operations backed by the United Nations (UN) since the end of the Cold War, a robust picture emerges. Starting in 1993 when the UN established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in order to address the carnage ongoing in the Balkans, the organization has been very active in the field, establishing a diversity of institutions. It provided the ICTY a sister court in 1994, the International Criminal Tribunal for Rwanda (ICTR), which targeted that country’s 1994 Hutu–Tutsi violence. Further UN-sponsored efforts were undertaken in 2000 to prosecute the violence associated with East Timor’s 1999 independence from Indonesia (the “Special Panels”), in 2002 to prosecute the perpetrators of crimes committed during Sierra Leone’s civil war (the “Special Court for Sierra Leone”), in 2003 to try members of Cambodia’s Khmer Rouge regime (the “Extraordinary Chambers in the Courts of Cambodia”), and in 2007 to investigate and prosecute those responsible for the 2005 assassination of former Lebanese leader Rafik Hariri (the “Special Tribunal for Lebanon”) (Linton 2001; Goldstone and Smith 2009:96).

As of this writing, there are UN-backed tribunals currently at work on three continents, employing thousands of personnel and prosecuting dozens of defendants. The financial backing of the UN and the wider international community for international justice is extraordinary (Skilbeck 2008:6–10). International justice has been a multi-billion dollar endeavor. For the 2008–9 biennium alone, international justice at institutions backed by the UN is an $825 million enterprise. At various points in its tenure, the ICTY alone has accounted for more than 10 percent of the UN’s total annual budget (Smith 2009:182).

While each of the UN tribunals has been significant in its own right, arguably the greatest indicator of international support for post-atrocity justice comes outside the UN. While all of the previous tribunals – from Nuremberg to the present day – have been “ad hoc” and temporary bodies, the International Criminal Court (ICC), a non-UN institution, is the first permanent international tribunal devoted to justice in the wake of mass crimes. Officially operational since July 1, 2002, by mid-2009 the ICC had 139 member states (the UN only has 53 more), a rapidly expanding annual budget that in 2008 reached a90 million (approximately $120 million), and was busily investigating and beginning the prosecution of wrongdoers from four conflict zones – the Democratic Republic of the Congo, Uganda, the Central African Republic, and Sudan (ICC 2009).

Though the post-Cold War international tribunals have been diverse in form, in broad terms their goals and operations have been parallel. They have each been concerned with the enforcement of International Humanitarian Law (IHL), “the branch of international criminal law concerned with international crimes […] [including] genocide and crimes against humanity” (Goldstone and Smith 2009:10). Each has sought to prosecute those individuals under its jurisdiction who have violated IHL.

The international community’s support for such a diversity of ad hoc bodies, let alone a permanent judicial body like the ICC, certainly gives the appearance of widespread enthusiasm for the enterprise of international justice. Even though the past 20 years have seen the advent of numerous nonjudicial means to respond to horrific violations – such as truth and reconciliation commissions (as in South Africa after apartheid) and professional disqualification/lustration (as throughout eastern Europe after communism) – the broad, global support for the ICC demonstrates that judicial prosecution of wrongdoers has become the world’s primus inter pares method for addressing mass crimes. However, a closer examination of the courts created, and in particular the progression of institutions from the ICTY in 1993 through to the more recent ICC, shows the ambiguity that has always existed between the international community and its provision of international justice for victims of mass crimes. Such an examination requires a brief initial review of the post-World War II foundation on which these courts have been built – the UN system. The legal and organizational structure of all of the international tribunals has been built explicitly or implicitly on top of the existing UN superstructure, and it was the UN system itself that legitimized the “judicial intervention” required to enforce IHL (Scheffer 1996:38). Yet, even the UN’s relationship with post-atrocity justice (let alone the relationships between its member states and such justice) is far from straightforward.

The United Nations – Promoter of “Justice,” But What Kind of Justice?

The UN Charter would seem to settle the matter – one of the primary goals of the UN is to provide justice. Its preamble provides that:

  • We the peoples of the United Nations determined […]
  • to establish conditions under which justice […] can be maintained […]
  • do hereby establish an international organization to be known as the United Nations.

(United Nations Charter 1945)

Events that led up to the UN’s formation and shortly thereafter seem to support the conclusion that justice has been central to the organization. The 50 nations that convened in San Francisco from April to June 1945 to hammer out a “United Nations” had just emerged from the battles of World War II. The horrifying abuses that had been perpetrated in both the Nazi occupation of Europe and the Japanese occupation of mainland Asia were first in mind for many. In the Moscow Declaration of October 1943, the United Kingdom, the United States, and the Soviet Union had recognized the atrocities that the Germans had perpetrated, and Japanese human rights violations were also long since acknowledged. The Nuremberg Trials of major German war criminals would begin in November, the Tokyo Trials for their Japanese counterparts the following May. Once the UN was officially formed, two of its first acts spoke directly to the importance of “justice.” First, the General Assembly (GA) officially endorsed the Nuremberg findings; and, second, it tasked its newly created International Law Commission (ILC) to work toward establishing a permanent international criminal tribunal (UN General Assembly 1947: Res. 177; Johnson 2003:96).

Despite the seemingly central role that justice played in the UN’s founding, a more nuanced look at the institution and at the wider relationship between international organizations and “justice” manifests a much more opaque and even uncomfortable role for the concept of “justice.”

The key to understanding why “justice” and international organizations have been such unlikely bedfellows can be found in a more granular examination of what the UN Charter says about the concept. With what sort of justice was the Charter concerned? The vast majority of mentions of “justice” in the Charter relate to the creation of the International Court of Justice (ICJ), one of the UN’s five principal organs. Despite its name, this body is not empowered to take cases on behalf of aggrieved individuals or even to prosecute individual malefactors. Rather, it is “justice” for states, not individuals, that is its goal. Article 34 of the ICJ’s statute makes this explicit, stating that “Only states may be parties in cases before the Court.”

This focus on states is even clearer in other aspects of the UN Charter: the term “justice” is far out-shadowed by perhaps the most famous phrase in the document: “international peace and security,” which appears 32 times. “International” – that is, between states – is the key modifier to “peace and security,” and it would not be until 1977 and the Second Geneva Protocol that the world community would agree on the importance of securing domestic peace and security. And even then there were notable holdouts that refused to ratify this addition. In short, the goal of the international community providing justice to victims by prosecuting individual wrongdoers, let alone the institutions of modern international criminal law that have allowed such an eventuality to come to pass, play no discernible role in the UN Charter (Scheffer 1996:35; Fox 1997:435). It would require an expansive (and widely criticized) reading of the document 50 years later for the provision of international justice to be “found” within the Charter’s original text (Greenwood 1998:104).

The Westphalian Hold Over

That there is little in the language of the UN Charter suggesting the imminent creation of an international criminal tribunal is not surprising. For the framing states to have done so, they would have been compelled to question, if not turn away from, some of the basic powers states hold most dear. Taken together these powers constitute state “sovereignty,” the contours of which have been broadly defined and jealously protected for centuries. For international law, the modern notion of statehood is most often dated from the 1648 Peace of Westphalia, which brought to conclusion two bloody and long-intractable European wars – the Eighty Years War between Spain and the Netherlands, and the Thirty Years War fought within the Holy Roman Empire. Most noteworthy about the treaties signed at Westphalia were that they radically delimited the arena of international affairs. The documents had as their fundamental tenets the inviolability of state sovereignty, and its corollary of equality between states. And, most important from the perspective of international justice, Westphalia held as paramount the noninterference by other states in the internal affairs of other members of the international community. International relations were to be governed by the consent of equal states parties, rather than fiat from above, and states themselves would be the sole governors of domestic acts. The precepts of Westphalian sovereignty quickly spread throughout the continent and then via Europe’s colonial exploits to the world at large.

It is hard to overstate the strength of the idea of Westphalian sovereignty. Such sovereignty has been thought so central to the identity of states that the terms “Westphalia” and “statehood” are to this day often used interchangeably. The endurance of Westphalia through the centuries is remarkable; it has arguably been the most resilient paradigm in all of international affairs, and the states that gathered to create the UN remained very much under its sway (Gross 1984:3–4). As result, the San Francisco Conference produced a modern Charter infused with a centuries-old ethic. As an initial matter, that it was states and not individuals or some other groupings that met at San Francisco is instructive, as is the structure of the most inclusive part of the UN organization – the GA. Though, as Churchill (1953:312) noted, for reasons of Allied comity in the waning days of World War II, the Soviet Union managed to secure more than one vote in the GA, for all other member states the GA was structured to provide them a single, equal voice. In practical terms, this means that San Marino, Liechtenstein, and Andorra, which together have less than 140,000 people and have an area less than 300 square miles, have the same voting power as China, India, and the US, whose citizens together comprise more than 40 percent of humanity and within whose borders lie more than 15 percent of the world’s territory. That the system is actually “country-cratic” rather than “democratic” (literally “rule by the people”) speaks to the Westphalian paradigm – the UN, and through it the wider post-World War II international community, was established to be legally concerned with, and organized around, the activities of states and not individuals within them.

However, as mentioned above, the international criminal tribunals that the UN and the world community have established have been about individual, rather than corporate, responsibility. This focus on the individual jibes uncomfortably with the state-based system organized by the UN, and the state-based justice provided for in the Charter. Whereas the Westphalian state is to a degree impenetrable from above, the notion of the “state” implicitly assumed by the international criminal justice system is one that is porous, allowing the wider world community and other states to pierce the “veil of the state” and address individuals directly.

More than simply reducing the strength of its inviolability, it could be argued that the state is actually fundamentally immaterial to the modern pursuit of justice for violations of IHL. Such enforcement proceeds under the assumption that regardless the rank or position of those appearing in the dock, their state is not similarly on trial. Contrary to the workings of the ICJ – again, the only judicial body explicitly conceived of in the UN Charter – for international criminal justice, the state cannot be a subject.

This represented a sea-change in international affairs. While Westphalia had allowed states to be protective of all aspects of their sovereignty, judicial control over a state’s individual citizens had been an especially guarded prerogative. Indeed, “justice,” and the wider means by which a state enforces its will internally, have long been viewed as the central, and essentially unchallengeable power, of the sovereign over its citizens. International criminal justice contests this basic notion of statehood (Goldstone and Smith 2009:13).

One could posit that such a surrendering of sovereignty was a continuation of a trend that occurred long before the resurrection of international criminal justice in 1993; over time, many states had given up a degree of control over their domestic justice. While true, the degree to which they had done so pales next to the abdication of domestic control over justice mandated by today’s international criminal justice system. For example, the 47 member states of the Council of Europe have agreed to be bound by the European Court of Human Rights (ECHR). Member states have all contracted to the European Convention on Human Rights, which provides the ability for states party or individual citizens to apply to the supranational ECHR if any of the Convention’s tenets are violated. The Court in turn can issue binding judgments on states.

Despite the seemingly broad allowance of international interference in domestic judicial decisions that adherence to the ECHR may appear to be, Council of Europe member states have enjoyed important limits on how much judicial autonomy they have actually surrendered. A key limit is embodied in the doctrine of “margin of appreciation” that the ECHR has developed. This doctrine refers to “the latitude a government enjoys in evaluating factual situations and in applying provisions [of] international [agreements]” (Benvenisti 1999:845; Arai-Takahashi 2002:4; Smith 2005:255–63). “The ‘margin’ is the deviation from some standard ‘average’ [allowed by the ECHR (and other multi-national judicial bodies that have similarly adopted this doctrine)]” out of respect for specific, unique domestic circumstances pertaining within signatory states (Smith 2009:106).

In practice, this means that the ECHR protects some base, local prerogatives, cognizant of the fact that “what is right for Spain may not always be right for the United Kingdom” (Smith 2009:106). Such an allowance is contrary to the provisions of international criminal justice, where there is no concept of “margin of appreciation.” Rather, it is its consistency of enforcement across cases, cultures, and crimes that many claim is the system’s fundamental goal and its primary strength.

Many states have also given up some rights of domestic justice by becoming parties to bilateral investment treaties (BITs). A network of more than 2500 BITs have been signed throughout the world; few countries are not party to at least one and many states are parties to dozens of such agreements. BITs are designed to promote cross-border investment by, inter alia, securing for foreign investors certain rights of redress if a host country violates its obligations. In most cases these rights can be vindicated by recourse to international arbitration, often consisting of an ad hoc tribunal of international adjudicators who can make binding judgments on a state.

In the case of BITs, states have surrendered some prerogatives, but have also limited the true reduction in their domestic judicial competencies in several ways. Some BITs demand exhaustion of local remedies before resort to international arbitration, and in the case of almost all BITs, states reserve the right to be involved in the choice of some of the jurists on the judicial panel. As will be discussed below, IHL enforcement departs from these protections as well.

Finally, regarding states’ adherence to the ECHR, BITs, or nearly any other supra-national judicial systems, it is important to recognize that parties reserve the right to derogate from their obligations under relevant treaties in the case of national security or other emergency. That is, in certain situations, they are not legally bound by the constraints that may be imposed from above. Though complicated and controversial, this right to derogation has been critical to state assent to such agreements (Rose-Ackerman and Billa 2008). Such derogation is much more limited, and in some cases completely prohibited, when it comes to IHL enforcement.

ICTY and ICTR – Holes in the Westphalian Armor?

Some thought that Westphalia had finally run its course in the years immediately after the Cold War. The foretold “End of History,” the rise of a “new world order” and the brief Pax Americana that existed in the immediate wake of the Cold War set the stage for a different, more universalist focus in international affairs. A critical aspect of this new thinking was the rise of the notion of “humanitarian intervention” and, more recently, of the “responsibility to protect.” These concepts refer to the legal right and/or obligation for a state to interfere in another state for purposes of humanitarian protection. They reject the monolithic nature of the Westphalian state; if the conditions in a sovereign state are bad enough, these doctrines promote intervention in other state’s domestic affairs in order to secure the rights and safety of endangered populations. The early 1990s saw a number of efforts launched under the broad rubric of “humanitarian intervention,” including the 1991 US intervention in Iraq to protect the Kurdish population, the 1992 UN authorization of intervention into Somalia, and the 1994 US-led intervention into Haiti.

With the early 1990s seeing the increasingly accepted recourse to humanitarian intervention, it was not a significant departure from the then current thinking for the UN to respond to the Yugoslav crisis, and then the Rwandan crisis, with international judicial organs. As will be discussed, both the ICTY and the ICTR were designed as distinctly interventionist institutions.

In May 1993 the UN Security Council passed Resolution 827, establishing the ICTY. The resolution noted that the violence in the former Yugoslavia posed a “grave threat to international peace and security,” which triggered action under the Security Council’s Chapter VII, legally binding authority. In November 1994, the Security Council found similarly in regards to the Rwandan genocide, and passed Resolution 955 establishing the ICTR. The two courts have thus been linked legally – with both operating as subsidiary organs of the Security Council; institutionally – in that they initially shared the same prosecutor and continue to share the same appellate bench; and philosophically – in that they each had features of what seemed a new international paradigm.

In regard to this third linkage, both courts were organized to try individuals, rather than to assign wrongdoing on any state entity. On several measures, the target states were even legally subsumed by the international organs. For instance, the law and procedures of the international institutions were to be those designed for international justice, rather than domestic justice. As such, a Croatian arraigned for trial before the ICTY, or a Rwandan similarly brought before the ICTR, answered for their wrongs in the language of international law and international procedure, rather than local Croat or Rwandan law. There is no “margin of appreciation” to account for any cultural, historical, or philosophical differences between cases.

What was true of the law and procedures was also true of the personnel working in the organizations. In neither the ICTY nor the ICTR were local officials welcome in any position of importance. There have never been any Balkan or Rwandan judges on the bench. It was over a decade before any Balkan or Rwandans were even invited to work in their tribunals.

The third and clearest break from Westphalia came in Article 9 of the ICTY statute (which corresponds to Article 8 of the ICTR statute), providing each court with

primacy over national courts. At each stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal.

The scope of this provision is remarkable. Even if states of the former Yugoslavia or Rwanda wished to exercise their sovereign prerogatives and try wrongdoers, the international courts were empowered to intervene in local justice efforts and even to remove cases if they wished. This was a serious challenge to Westphalian statehood and it flew directly in the face of concerns frequently and vociferously raised in the days after World War II when the idea for a permanent international criminal court was first discussed. At that time, many states expressed concern about the ability of any proposed international court to violate national sovereignty by limiting “the right of […] states to try crimes committed on their territory” (Johnson 2003:97). And, in the case of the ICTY and ICTR, this power of primacy over domestic justice has not been hortatory. Throughout their tenures, the ICTY and ICTR have regularly intervened in local justice, criticizing, granting, or refusing permission for local judges to proceed in certain matters, and otherwise involving themselves in local judicial endeavors. This power was buttressed by the fact that as subsidiaries of the Security Council, the ICTY and ICTR operated with the full force of the Charter’s Chapter VII.

That the courts were formed under Chapter VII powers imbued them with another anti-Westphalian component. Under Chapter VII, Articles 48 and 49 incurred on all member states of the UN an obligation to afford “mutual assistance” to the efforts of the courts. Even those states that disagreed with the courts and that may have even voted against their creation were nonetheless required to support the organizations. Most prosaically, this has meant their assisting the courts’ funding, which has been derived in large part from the UN’s own central, member-supported budget. For the ICTY this may seem an academic point, given that the resolution creating the tribunal passed unanimously. Yet, there was significant debate prior to its eventual adoption, with the scope of the ICTY’s control of local, judicial action a key cause of skepticism if not criticism from many both on the Security Council and off. China and Brazil both expressed doubts regarding the legality, under the UN Charter, of the creation of international tribunals, thinking it was a step too far and undermined state sovereignty too much. Even the UN’s Secretary General indicated his own doubts about the legal propriety of the Security Council establishing such an entity (Cryer 2005:53).

In the ICTR the binding nature of the organization on all UN members has been even more striking, because the Rwandan government itself was sitting on the Security Council in one of the body’s ten rotating seats at the time the ICTR resolution was presented for a vote. Rwanda voted against the resolution. However, once it passed, Rwanda was compelled, as a member of the UN, to assist in the work of the ICTR even though it had clearly indicated its wish to refrain from doing so. Contrary to the logic of Westphalia, IHL enforcement did not require consensus among equal states in the international community, but rather could be instigated by directive from above, forcing even reluctant member states to cede key aspects of their sovereignty.

Taken together, the characteristics of these first two post-Cold War international tribunals can be seen as significant fissures in the Westphalian armor that had protected states. However, any weakness in the armor is less than it appears. These first post-Cold War tribunals are significantly limited institutions that continue to recognize and respect state sovereignty. Indeed, rather than representing the end of Westphalia, it is arguable that on balance the ICTY and ICTR have enforced Westphalian protections.

The first critical limit concerns the courts’ competence to try given individuals and crimes. In legal parlance, this speaks to the courts’ jurisdiction, and for both the ICTY and the ICTR the international community radically limited the bodies’ jurisdictions. Inter alia, both courts were limited temporally and geographically. The ICTR was limited solely to the 12-month period from January 1994 to December 1994 and has had competence only over crimes committed in Rwanda or by Rwandans in neighboring states. The ICTY, meanwhile, was more expansive, with jurisdiction over crimes committed on the territory of the former Yugoslavia from 1991 going forward. The extreme limitation of the Rwandan tribunal was one of the reasons that the Rwandan government provided in justifying its Security Council vote against the institution.

Other than their jurisdictional limits, the most evident powers that the international community refrained from providing its new courts were those related to enforcement. As Robbins (2006:88) notes, it is “intrinsic to every national justice system [to have] some type of enforcement arm […].” This is necessary “because of the simple fact that criminals do not tend to turn themselves in for prosecution voluntarily” (Robbins 2006:88). What is true of domestic law is equally so in the international arena.

This absence of enforcement powers has had an impact on the ICTY and ICTR in all aspects of their operations, from investigation, to apprehension, to final sentencing. Even though at each stage the courts have had the juridical power and theoretical reach endowed by their Chapter VII status, and the statute of each has mandated that “states shall comply without undue delay with any request for assistance […]” made by the bodies, the reality has often been far more stark. Indeed, “cooperation with the tribunal[s has been] so deficient that the effectiveness of the tribunal[s has been] questioned regularly” (Kerr 2004:129–30; Robbins 2006:88).

Such cooperation has been critical for a host of reasons unique to international, as opposed to domestic, justice. For instance, neither the ICTY nor the ICTR has been located in the country in which the crimes under its jurisdiction occurred. Consequently, at the very least they have needed cooperation from the target states in terms of the granting of visas, access to material, and security on the ground during investigations. Such logistical cooperation has fluctuated. Given its initial rejection of its tribunal, it should not have been unexpected that Rwanda would have at times completely frozen relations with the ICTR, denying visas for investigators and even limiting the ability of witnesses to travel from Rwanda to testify before the court. The ICTY has also experienced the intermittent cooperation of states in the region, with almost all post-Yugoslav states, at several points, withdrawing or severely limiting cooperation, and in the case of some, such as Croatia and Serbia, even positively sabotaging ICTY efforts to collect evidence in the country.

If the international courts had been domestic courts, the institutions could have mandated production of evidence via warrant and/or found noncooperating entities in contempt and punished them severely. This has not been the case for uncooperative states, and Westphalia remains very much alive in terms of the limited legal recourse the courts have when it comes to compelling state action. Interestingly, it has been the courts’ own judicial decisions, rather than direct pressure from outside states, that have set the bounds for some of these fundamental limitations. For instance, in order to build its case against former Serbian leader Slobodan Milosevic, the ICTY prosecutor asked the court to issue an order to direct Serbia and Montenegro to produce certain material. The ICTY refused and said that it did not have the power to issue such an order, which would have amounted to a warrant or a subpoena. Moreover, through the latter half of the 1990s the Croatian government was extremely hostile to the ICTY, a state of affairs that led the prosecutor to request the court to censure the state for its behavior. However, in a celebrated case, the ICTY held that a state could not be so censured; a state cannot be held in contempt of court (Smith 2009:181).

As a result, the ICTY and ICTR have been left with but a single option when faced with noncooperation: referring the noncooperating state to the UN Security Council. The result has been some strongly worded reprobation, but few, if any, actual consequences. It is noteworthy that compelling cooperation of states has fallen to those entities outside the courts with the most effective means of compulsion, the offer of the potential carrots of financial reward or wider regional economic integration. In such cases, the target states have often finally agreed to cooperate, but have done so for reasons entirely apart from justice or respect for their courts. Time and again, states such as Rwanda and through the Balkans have conceded to the demands of their courts for reasons of strict Westphalian state interest, rather than as true recognition of the good (let alone necessity) of international criminal tribunals prosecuting their citizens.

Added to its difficulties with the target states, the ICTY and ICTR have also been forced to contend with intermittent cooperation on behalf of other states, including permanent, veto-wielding members of the Security Council. These states have often had access to detailed evidence collected during the Balkan wars or Rwandan violence and, at times, have been reticent to provide material to the courts. In such circumstances, even referral to the Security Council has not been a possibility, with the courts resorting to attempted “shaming” of the noncompliant states by publicizing their lack of cooperation. This failed to yield significant improvements in the situation (Smith 2009:180).

The ramifications of the courts’ absence of enforcement powers has continued once the initial investigation is completed and an indictment approved. Without a police force, the courts have been required to rely on the whims of others to assist in apprehending defendants. Here, the basic disjuncture between international courts and international force is jarringly distinct from the situation in domestic law. In a domestic legal situation, the arms of force are arranged in large measure to do the bidding of the arms of justice. In the international realm, the providers of force have often been entirely outside the control of the providers of justice, and indeed often adverse to the desires of the justice providers. For instance, in postwar Bosnia, thousands of NATO soldiers patrolled the country. Yet, they proved largely unwilling to apprehend even the worst of the ICTY’s indictees. As Kitfield (2000:1508) noted:

One […] war criminal [indicted by the ICTY] was living within one hundred meters of the British garrison in the town of Banja Luca, in Bosnia-Herzegovina [but was not arrested]. Another got drunk over a bad conscience and tried to turn himself in at a Dutch checkpoint but was turned away because his picture didn’t appear on the tribunal’s “wanted poster.” Still another reportedly thought it a big joke that he passed through an American checkpoint every day with a military ID card that clearly named him […]. Meanwhile […] wanted war criminals […] were seen every day on the streets of the cities of Pale and Han Pijesek, in the French and American sectors respectively.

In another case, NATO personnel

went as far as modifying a poster printed on the behalf of the ICTY […]. The original poster identified all publicly indicted war criminals with their last known addresses. After journalists challenged the US military’s claim that it had insufficient intelligence to arrest the war criminals by pointing to the addresses on the poster […] [NATO] reprinted the poster without the addresses. The decision outraged the ICTY who asked that its logo be removed from the poster. At the end of this controversy, [NATO] [refused…even] to distribute the posters.

(Wentz 1998:2)

NATO peacekeepers felt that even if “justice” demanded that they arrest some of these individuals, doing so could jeopardize their wider peacekeeping role. While such debates of “peace versus justice” may exist in the domestic arena, the “rule of law” assures that in the end it is the courts that make the determination to go forward rather than the providers of force. The opposite has been the case in the international arena.

Finally, even after successful indictment, arrest, and conviction, the international community chose not to provide its international courts with an independent prison system. Rather, the tribunals have relied upon the cooperation of other states to take in convicts. And, once these prisoners are transferred, they cease to be international prisoners and instead become wards of the states that have agreed to play host. This is also a different disposition than one would see in domestic justice systems, in which it is the court that usually maintains its legal hold over its charges. Yet, the situation in which international control recedes in favor of state control during this final stage of providing international justice accords with the reality of continuing Westphalian power.

The Hybrid Model – Still “International” Justice?

Despite the ICTY’s and ICTR’s limits, in many ways they have represented the height of post-Cold War international judicial power, with subsequent iterations of international tribunals further cabining “international” power over justice. Even as the ICTY and ICTR continued their operations, the UN and the wider international community recognized that there were numerous other states that were similarly exiting from periods of mass violence that could benefit from judicial resolutions. The problem for the UN, though, was that it was not clear if the international community would support the establishment of more international tribunals. The cost of the ICTY and ICTR, combined with their limited judicial productivity, led some to doubt whether there was the requisite support in the international community for further courts. One could view the differences in the Security Council votes on the ICTY and the ICTR as an early indication of this erosion in enthusiasm on the part of the international community. Though there was some acrimonious debate regarding the ICTY, the Security Council resolution creating it eventually passed unanimously. The ICTR resolution did not. As mentioned, Rwanda refused to support the resolution, and, importantly, one permanent member (China) abstained. China’s primary criticism was that it was “not in favor of invoking at will Chapter VII of the Charter to establish an international tribunal through the adoption of a Security Council resolution” (Boot 2002:229). Beijing did not like the precedent of binding the world community to legally abrogate state sovereignty in this critical realm of state power.

The first test of the international community’s support of international justice following the creation of the ICTY and ICTR would come in 1999, in East Timor. In September, the territory voted for independence from Indonesia. The result sparked mass violence against East Timorese, perpetrated by militias backed by Indonesia and by elements of the Indonesian security establishment. The Security Council, at least initially, opted against establishing any tribunal to prosecute what were clear, well-documented IHL violations. Under Resolution 1272, the Security Council empowered the UN to take over all “transitional” government functions under the UN Transitional Authority for East Timor (UNTAET). This included the “administration of justice,” but it did not include any provision for a tribunal. Rather, mindful of the unease among some members of the Security Council, the decision on the mechanics of justice was delayed and ordered to be investigated. The investigation resulted in a UN report on the scope of the violence, released in January 2000. The report recommended to the Secretary General that an international tribunal, in the mold of an ICTY or ICTR, be established (United Nations 2000).

The Secretary General demurred, opting for the creation of a special court within the domestic justice system of East Timor. The court would be partially domestic, and partially international, with judges, staff, and law sourced locally and from abroad. One of the Secretary General’s stated reasons for pursuing such a “hybrid” arrangement was his belief that Indonesia would be setting up a court of its own to investigate and prosecute those involved. That is, both East Timor and Indonesia would be providing justice themselves. This solution greatly assuaged those members of the Security Council that had become weary of international tribunals overstepping their bounds and overburdening the UN system.

A similar solution was developed for Sierra Leone when that country approached the UN about establishing a tribunal to address the crimes committed during its civil war. In that case, the Security Council authorized the Secretary General to engage in negotiations with the government of Sierra Leone regarding the establishment of a tribunal. The result was another hybrid structure. Although it was distinct from the East Timor arrangement in that the resulting Special Court for Sierra Leone was bureaucratically and legally located outside the regular Sierra Leone justice system, it too was marked by its location on the ground in the target country, the presence of a mixed local–international staff, and its governance under a combination of local and international law. More recently, in regard to crimes committed in Cambodia and Lebanon, similar negotiated, hybrid structures have emerged.

Though these hybrid tribunals are often analyzed alongside the ICTY and ICTR, the difference and progression between the earlier courts and the more recent varieties are startling. The most important difference is how far removed they have become from “true” international justice. It is no longer the international community exerting its will on the lawless, as it has with the legal precedence enjoyed by the ICTY and ICTR over local justice. Rather, under the hybrids, such “international” justice is now a partnership between the local and the international. Justice dispensed by the hybrid courts is arguably of actually limited international character, and instead is domestic justice with an international flavor. This too fits well with the continuing life enjoyed by Westphalia. The hybrids all emerged either within domestic justice systems or as a result of negotiations between the international community and states. Though the orthodox Westphalian precepts do not permit compelling states to surrender their sovereignty, a logical codicil to the paradigm is that states are free to do so if they choose. In these hybrid courts, that is what has happened.

The hybrid tribunals have continued and in some senses exacerbated the international system’s limited grant of enforcement powers to its courts. In many respects, it can be said that these newer courts have all the weaknesses of the ICTY and ICTR and few of their strengths (Smith 2009:71). As such, the hybrid tribunals have been even more reliant on states for their assistance, and states have at times been even more brazen in their efforts to deny cooperation or even positively attempt to scupper the work of the tribunals. For example, in East Timor, despite the Security Council’s resolutions, the Special Panels had no effective jurisdiction over Indonesia, and thus the gathering of evidence, let alone the arrest of suspects protected by Jakarta, was impossible. The Panels’ requests to the Indonesian government were ignored and when the Panels asked the Security Council to assist in securing access to Indonesian material and officials, its requests were at times ignored and at times directly rejected. This latter outcome was the result when the Special Panels issued an indictment against Indonesia’s powerful General Wiranto, who would have been the Panels’ star defendant. The international community refused to assist the Panels, going as far as to make the disingenuous claim that the indictment itself was improper (Romano et al. 2004:85; Goldstone 2007:471).

In Sierra Leone, the Special Court was forced to rely upon good fortune and eventu-ally international pressure to detain its star defendant, former Liberian president Charles Taylor. Several states refused to heed the Court’s arrest warrant and apprehend Taylor, and it was only after Nigeria received significant pressure, more than three years after Taylor’s indictment, that he was finally surrendered. And for the Lebanon Tribunal, cooperation from the two states critical to that court’s success – Syria and Lebanon – has been regularly limited. Cooperation from Damascus has oscillated and within Lebanon elements most implicated in any potential trials have engaged in a string of assassinations and intimidations in order to limit any Lebanese assistance. There is little the Tribunal can do, and there has even been talk of shuttering the Tribunal in exchange for Syrian concessions in other areas of import to the international community (such as wider Middle Eastern peace). International “justice” thus has the potential of becoming a chit in the wider regional political game between states rather than an inviolable part of the international system. That such a deal is being discussed, let alone if it were to come to pass, also suggests the maintenance of Westphalian powers over the import of international justice.

An additional, new weakness for these hybrids comes from their funding structures. While the ICTY and ICTR have been funded from the central budget of the UN, the Security Council did not provide for such funding for the new courts. Rather, funding has been split between the host state and voluntary contributions on behalf of other states. The host states of these hybrid bodies have all been financially strapped and voluntary contributions have often failed to materialize or to be sufficient. As a result, the new tribunals have been consistently short of money, delaying proceedings, freezing critical hiring, and even regularly threatening closure. This state of affairs has forced senior tribunal officials to spend vast time traveling the world raising funds, rather than engaging in the work of the tribunals. The prosecutor for the Sierra Leone court, for instance, has reported that more than one-third of his time is spent outside Sierra Leone trying to secure funds. Having the lead prosecutor supplicating for funding before the international community further emphasizes the inequality in power held by states vis-à-vis their international judicial creations.

The International Criminal Court: Strength or Weakness of International Justice?

Much as with the ICTY and ICTR, there are aspects of the ICC that perhaps suggest the dawn of a new, post-Westphalian international justice system. However, continuing the trends seen in the hybrid courts, the ICC can be viewed as a continuation of the steady attrition of true, unfettered international justice in the face of the resilient Westphalian imperative. At best, the ICC represents what Sadat and Carden (1999–2000) deemed an “uneasy revolution.”

The ICC emerged from a treaty that was negotiated in Rome during the summer of 1998. The text of the treaty was based upon a draft document written by the ILC, which had been charged by the GA in 1992 to resume its Cold War-suspended efforts toward creating a permanent international criminal tribunal. The six weeks of deliberations saw the participation of 160 states – some 85 percent of the UN membership. Though an impressive participation rate, even more numerous were the nongovernmental organizations (NGOs) that descended on Rome for the negotiations. By some count, more than 250 NGOs were involved in the process, with many NGO delegations bringing to bear significantly more resources and memberships than some state delegations. This nongovernmental participation in itself speaks to a new, less preeminent role for states on the world stage. As discussed above, one of the primary propositions of the Westphalian ideal is that states are juridically the sole legitimate interstate actors. While it is true that NGOs did not have a vote when it came to finalizing the treaty, that the group of nonstate organizations would have any power (which it certainly did) suggests some erosion of this aspect of Westphalia.

A further component of the Rome process was even more directly contrary to Westphalian principles. As discussed, the international community has long been governed by consensus, with states free to opt out of agreements not to their liking. Moreover, for many global treaties, unanimity has been required for adoption. A key example are the trade agreements that led to the creation of the World Trade Organization – one of the reasons true global, multilateral progress on trade has been so hard to come by is that unanimity is required before states can be legally compelled to adjust their rules and regulations concerning trade. This was not the case at Rome, where traditional notions of treaty making gave way to majoritarianism. The treaty was passed despite the absence of unanimity: 120 states voted for the text, 21 abstained, and seven (including the US and China) rejected it.

There were other novel aspects to the Rome treaty. For instance, the law of treaties has a highly developed practice of legal reservations wherein states can become party to an agreement while simultaneously notifying other signatories that they will not be bound by certain aspects of the agreement (Vienna Convention 1969). Article 120 of the ICC statute denies states this right, providing that no reservations are permitted. This article was bitterly opposed by some states, including the US and France. The majoritarianism has continued since 1998, and especially since the Court officially came on line in 2002. It is true that the Court has more limited jurisdiction over states that are not signatories to the body, but it is not true that such states can completely exempt themselves from its dictates. Cases can be commenced by the ICC through any of various means, and only some of them require the subject crimes to have been committed in or the subject defendants to come from a signatory state. The current investigation of the Darfur situation is the leading example of this; the UN Security Council referred the matter to the ICC, bestowing jurisdiction on the Court for crimes committed in Sudan by Sudanese citizens even though Khartoum is not a member of the Court.

Despite these departures from Westphalian logic, in practice there is more to the ICC that seems to respect state inviolability than otherwise. Indeed, that the Court is based on a treaty – from which states can abstain – is a critical recognition of the maintenance of state power and speaks directly to some of the key concerns lodged by states against the universally binding nature of the Security Council-provided ICTY and ICTR mandates. This binding support included assistance in paying for the courts and (even if largely unenforced) requirements to assist the courts in their efforts. The ICC, however, is much more of a true membership organization and its budget and authority (with the exception of the Security Council caveat at play in regard to Sudan) thus limited to its members. Moreover, despite the prohibition of reservations, the treaty does provide some flexibility. For instance, Article 124 allows that states:

on becoming a party to this Statute, may declare that for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to [war crimes] […] when […] alleged to have been committed by its nationals or on its territory.

“Additionally the statute include[s] some provisions that allow[] […] states to formulate interpretative declarations or attach conditions to the application of some of its articles” (Meernik and Aloisi 2007:13). Article 121, for example, provides for withdrawal and exemption from jurisdiction over certain crimes if the definitions of those crimes are changed by the majority of members but disagreed with by a given state party. This may come into play over the next several years as the ICC amends its statute to define the crime of “aggression.”

Second, though controversial, it would seem that states party can find themselves immune from either surrendering individuals to the Court or even assisting the Court if doing so would be contrary to their existing international obligations to other states. It is on this basis that the US has secured more than 100 bilateral “Article 98 agreements,” with states providing that neither will surrender citizens of the other to the ICC. The treaty also provides an important, and at times controlling, role for the UN Security Council. Other than being referred matters from the body, the Security Council can also order the ICC to defer investigation or prosecution in any matter for a renewable period of 12 months. The political, state-based institution that is the Security Council can thus trump the judicial institution that is the Court.

The more basic issue of legal preeminence is another critical manner in which the ICC has been limited by its creators. And it is in this regard that the degradation of power and authority seen between the creation of the ICTY and ICTR and the ICC is most marked. While the early tribunals enjoyed legal preeminence over local courts, the ICC is manifestly a secondary institution, operating as a “complement” to national jurisdiction. Under Article 17, the ICC cannot exercise its jurisdiction over a matter if a

case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.

Though it remains undefined what “unwillingness,” “inability,” or “genuinely […] prosecute” entail (and thus the real scope of this limit on ICC action is murky), Article 17 is a substantial departure from the unfettered ability of the ICTY and ICTR to intervene in the local judicial systems under their jurisdictions. Interestingly, since its founding the ICC has found itself a complement not just to domestic justice systems, but also to other aspects of the international justice system. While its temporal jurisdiction limits would have barred it from exercising jurisdiction over almost all of the crimes under purview at the existing tribunals, the Court could have, at least theoretically, found jurisdiction over the February 2005 assassination of Rafik Hariri. However, the international community decided not to entrust its new international criminal court with this crime, which similarly “constitute[d] a threat to international peace and security” meriting a Chapter VII resolution. Instead, it opted to develop another, freestanding, ad hoc, limited-jurisdiction body in order to investigate and prosecute these crimes (Aptel 2007). State prerogatives to address certain crimes outside the confines of its permanent criminal court are a direct reflection of Westphalian powers.

A final component of the ICC which suggests less than full international support for true international justice emerges once one realizes that the international community has once again failed to provide an international judicial body with any powers of enforcement. Much like its forebear tribunals, the ICC relies entirely on voluntary, state compliance for all of its operations. Article 86 of the statute requests parties to cooperate with the ICC’s directives, but this cooperation is not only limited to states party (meaning, for example, that no such obligation is made on the US), but subject to significant limitations. As a general matter, states are free to determine how they interpret and carry out requests for Court assistance. Moreover, as Robbins (2006:86) notes, there are three exceptions to state cooperation (as yet undefined and thus seemingly open to use [and abuse] by recalcitrant state parties):

– a state can refuse to cooperate with the Court’s request if its assistance would violate an “existing fundamental legal principle of general application,” and after consulting with the Court, the matter cannot be resolved;

– a state can deny a request for assistance if it would produce documents or disclose evidence relating to its national security interests; and,

– a state’s assistance is limited to that “which is not prohibited by the law of the requested state.”

Much as with the ICTY and ICTR, the ICC cannot compel state compliance, leaving the ICC, like its predecessors, with the sole recourse of reporting the noncompliance to the court’s governing body, the Assembly of States Parties, or, if the case was referred to it by that body, the Security Council. And, even if in receipt of a report of noncompliance, the ASP is charged solely to “consider” the noncooperation, with no provisions made for any remedial measures. Further, much as in the previous international tribunals, the ICC cannot bring force to bear in order to compel cooperation (Robbins 2006:88). Finally, many have noted that the ultimate sanction of a treaty body – the ejection of the offending party from the agreement – is not a feasible option given the unique, universalist goals of the Rome Treaty (Broomhall 2003:153; Robbins 2006:88). In the face of noncooperation, the ICC’s hands are tied.

More recently, there have been other events that seem to have weakened (or at least have had the potential to weaken) the ICC in favor of states and state prerogatives. For instance, in Uganda, the ICC was invited by Kampala to investigate abuses committed by the Lord’s Resistance Army (LRA), a rebel group responsible for horrific violence over the past several years. The investigation resulted in the issuance of indictments of LRA leaders by the ICC. However, the Ugandan government, in the midst of negotiating an end to the LRA’s violence, has put forth the possibility of amnesties (from both local and international punishment) for the LRA as a part of its offer. It is not clear if Uganda, a member state of the ICC, has the legal right to unilaterally withdraw ICC indictments. However, it is evident that much as in the case of NATO refusing to assist the ICTY, even if an ICC member state has invited the ICC to investigate a case in its territory, some states will balk at the reality of international judicial limitations on their central domestic prerogatives (such as negotiating peace agreements and offering amnesties).

Taken together, even in the wake of the world’s first permanent international criminal court, reports of the demise of the Westphalian state have been overstated. Indeed, in all of international justice’s iterations to date and in almost all facets of judicial operations, states’ powers, if not always their preeminence, have maintained over the goal of international tribunals ascribing individual, criminal accountability. The latter has almost always been limited in favor of the former.

International Justice in the Face of Westphalia – The Rise of Domestic International Justice

In the limits placed on the various international institutions created to enforce IHL, the international community continues to hold fast to central elements of Westphalian protections. However, while the past two decades may have seen ambiguous growth and acceptance of international judicial institutions supplanting domestic judicial institutions, the same cannot be said for wider international law and the “culture” of IHL. That is, we should not allow the attention placed on the ICC and its predecessor institutions to obscure the fact that international law and IHL norms have taken root in domestic law. This movement has ironically made the domestic plane the “most vibrant location for the permanent practice of enforceable international humanitarian law” (Goldstone and Smith 2009:68).

The manner in which this has happened illustrates that even if the structure of Westphalia remains, there are aspects of state inviolability that states themselves have agreed to cede. The growth of domestic international law is a direct product of wider globalization, the process by which the states of the world are becoming ever more closely linked and interdependent. Expanding international trade flows, geographically dispersed supply chains, and the ubiquity and spread of global communications are among the phenomena that “globalization” commonly refers to. This process has required that in certain realms the state has surrendered full authority. However, as “sectors of society ranging from the economy to the academy have been busily […] universalizing, law has been a comparative bastion of particularism” (Goldstone and Smith 2009:65). States who wish to remain in control of their law have been able to rely on specific aspects of law to protect their local prerogatives and even reinforce the states’ walls. After all, in most states law derives from local legislators who can limit how international their domestic codes become.

While some states remain committed to limiting the encroachment of international law into the domestic, over time the tide of globalization has forced many to begin the process of internationalizing their laws as much as their economies. For some, it was the economy that has at least initially pushed legal globalization. The BITs and international trade pacts discussed above – both of which incur domestic, enforceable components – have been the vanguard for ever more parts of international law winding its way into domestic law. Other states have been more explicitly welcoming of international law; several constitutions written over the past three decades have encouraged or even welcomed nondomestic law into the domestic canon, allowing it to directly influence municipal code and legal interpretation. Across large swaths of the spectrum of laws, from basic freedoms to nuanced regulatory affairs, the line between international law and domestic law has thus become blurred (Smith 2006).

This has become as true for “international” crimes as it is for other laws. Indeed, the domestic enforcement of international law has actually enjoyed a longer history than it may seem, stretching back to the wake of World War II. The Genocide Convention of 1949, for example, is a universally agreed-upon legal bulwark against genocide and places the primary burden for the enforcement of an international crime (genocide) on domestic courts. Further, many of the key domestic prosecutions of World War II criminals that took place during the Cold War did so by explicit reference to international law and norms, rather than strictly domestic regulation. For instance, in justifying its jurisdiction over Nazi leader Adolf Eichmann, the Israeli domestic court that tried him in 1961 held that his crimes were not necessarily against the individual code of a particular state (least of all Israel, which did not exist at the time of Eichmann’s crimes) but, rather, were “grave offenses against the law of nations itself” (Landsman 2005:61–5). Twenty-four years later, a French court tried Nazi Klaus Barbie and relied on French code that had incorporated the findings of the international tribunal at Nuremberg. French domestic law was written to echo international law understandings.

This process of bringing international criminals to trial in domestic courts strengthened in the last quarter of the twentieth century which saw some states, inter alia, beginning to assert universal jurisdiction (i.e., jurisdiction in their own, domestic courts) over international criminals and others, such as Iraq and Ethiopia, calling on international law when domestic courts addressed the individual wrongs perpetrated by leaders of prior regimes. Since the ICC emerged, many of the nations that have ratified the Rome Statute have incorporated the international crimes mentioned in the document into their domestic codes. This has already resulted in domestic prosecutions of the specific international crimes proscribed by the ICC, as occurred in 2008 in the UK.

With the background of the continued strength of Westphalia described above, this process of incorporation and adoption of international law by individual states is logical. Despite the fact that the international community has deprived its judicial creations of many of the central powers of enforcement, the commitment to international law and justice appears bona fide. The global support for individual accountability for international crimes is evidenced by the widespread support for bodies such as the ICC (let alone its predecessor institutions). But, it is much easier for a state wishing still to cleave to its Westphalian inviolability and yet respond to the strengthening global consensus around the necessity of protecting certain human rights to allow its own domestic institutions to do international work rather than allowing a super-state body to oversee and intervene in its domestic operations. For supporters of international justice, though perhaps not perfect, it is a solution that should be heartening, given the distance the world community has traveled from the strictures of monolithic Westphalia to today.

The Progression of Academic Discourse on International Justice and Tribunals

In many respects, scholarship on the post-Cold War international judicial institutions remains in its infancy and appears almost entirely in the historical, legal, or political science canon (see, e.g., Bass 2002). Only recently have more broad-brushed works on the topic appeared, studying the phenomenon through the lens of disciplines including economics, public policy and management, gender, and religious studies (see, e.g., Vogt 2006; Dembour and Kelly 2007; Miller 2008). As international justice progresses and permeates more fully into societies around the world, this progression of academic discourse will follow, and thus we can expect not only additions to the “global” literature that discusses international justice, but also increasingly literature from the unique perspective of cultural and local community studies examining the psychology and sociology of the phenomenon.


Aptel, C. (2007) Some Innovations in the Statute of the Special Tribunal for Lebanon. Journal of International Criminal Justice 5(5), 1107–24.Find this resource:

Arai-Takahashi, Y. (2002) The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR. New York: Intersentia.Find this resource:

Bass, G. (2002) Stay the Hand of Vengeance. Princeton, NJ: Princeton University Press.Find this resource:

Benvenisti, E. (1999) Margin of Appreciation, Consensus, and Universal Standards. New York University Journal of International Law and Politics 31, 843–54.Find this resource:

Boot, M. (2002) Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court. New York: Intersentia.Find this resource:

Broomhall, B. (2003) International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. New York: Oxford University Press.Find this resource:

Churchill, W. (1953) The Second World War, Vol. VI: Triumph and Tragedy. New York: Houghton Mifflin.Find this resource:

Cryer, R. (2005) Prosecuting International Crimes: Selectivity and the International Criminal Law Regime. New York: Cambridge University Press.Find this resource:

Dembour, M.-B., and Kelly, T. (eds.) (2007) Paths to International Justice: Social and Legal Perspectives. Cambridge, UK: Cambridge University Press.Find this resource:

Fox, H. (1997) The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal. International & Comparative Law Quarterly 46, 434–42.Find this resource:

Goldstone, R.J. (2007) The International Criminal Court and Ad Hoc Tribunals. In T.G. Weiss and S. Daws (eds.) The Oxford Handbook on the United Nations. New York: Oxford University Press, pp. 463–78.Find this resource:

Goldstone, R.J., and Smith, A.M. (2009) International Judicial Institutions: The Architecture of International Justice at Home and Abroad. New York: Routledge.Find this resource:

Greenwood, C.J. (1998) The Development of International Humanitarian Law by the International Criminal Tribunal for the former Yugoslavia. In A. von Bogdandy and R. Wolfrum (eds.) Max Planck Yearbook of United Nations Law. The Hague: Martinus Nijhoff, pp. 97–140.Find this resource:

Gross, L. (1984) Essays on International Law and Organization. Boston: Nijhoff.Find this resource:

ICC (International Criminal Court) (2009) At, accessed Nov. 17, 2009.

Johnson, S. (2003) Peace without Justice: Hegemonic Instability or International Criminal Law. Burlington, VT: Ashgate.Find this resource:

Kerr, R. (2004) The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy. New York: Oxford University Press.Find this resource:

Kitfield, J. (2000) Humanity’s Court. National Journal, 1508.Find this resource:

Landsman, S. (2005) Crimes of the Holocaust: The Law Confronts Hard Cases. Philadelphia: University of Pennsylvania Press.Find this resource:

Linton, S. (2001) Cambodia, East Timor and Sierra Leone: Experiments in International Justice. Criminal Law Forum 12, 185–246.Find this resource:

Meernik, J., and Aloisi, R. (2007) I Would Like to Make a Reservation: Explaining States’ Reservations Regarding the International Criminal Court. Paper presented at the 2007 Annual Meeting of the American Political Science Association, Aug. 30–Sept. 2.Find this resource:

Miller, Z. (2008) Effects of Invisibility: In Search of the “Economic” in Transitional Justice. International Journal of Transitional Justice 2, 266–91.Find this resource:

Robbins, E. (2006) Towards Enforcement in the International Criminal Court. Eye on the ICC 3(1), 85–100.Find this resource:

Romano, C.P.R., Nollkaemper, A., and Kleffner, J.K. (eds.) (2004) Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia. New York: Oxford University Press.Find this resource:

Rose-Ackerman, S., and Billa, B. (2008) Treaties and National Security. New York University Journal of International Law and Politics 40, 437–96.Find this resource:

Sadat, L.N., and Carden, S.R. (1999–2000) The New International Criminal Court: An Uneasy Revolution. Georgetown Law Journal 88, 381–474.Find this resource:

Scheffer, D. (1996) International Judicial Intervention. Foreign Policy 102, 34–51.Find this resource:

Skilbeck, R. (2008) Funding Justice: The Price of War Crimes Trials. Human Rights Brief 15(3), 6–10.Find this resource:

Smith, A.M. (2005) Good Fences Make Good Neighbors? The “Wall Decision” and the Troubling Rise of the ICJ as a Human Rights Court. Harvard Human Rights Journal 18, 251–64.Find this resource:

Smith, A.M. (2006) Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case. Berkeley Journal of International Law 24, 218–72.Find this resource:

Smith, A.M. (2009) After Genocide: Bringing the Devil to Justice. Amherst: Prometheus Press.Find this resource:

United Nations (2000) Report of the Secretary-General on the United Nations Transitional Administration in East Timor, January 26, 2000, S/2000/53 (and two addendums, both dated February 8, 2000).Find this resource:

Vienna Convention on the Law of Treaties (1969) Sec. 2, Arts. 19–23.Find this resource:

Voigt, S., Albert, M., and Schmidtchen, D. (eds.) (2006) Conferences on New Political Economy. Vol. 23: International Conflict Resolution. Tübingen: Mohr Siebeck.Find this resource:

Wentz, L.K. (1998) Peace Operations and the Implications for Coalition Information Operations: The IFOR Experience. At, accessed March 1, 2008.

Each international judicial body has an official web presence:

All accessed Nov. 17, 2009. The official website of each court provides information on the tribunal’s statute, rules, regulations, and personnel. The sites provide information on current and past cases and access to judicial decisions. Each site also streams certain cases and court actions to be viewed online.

The United Nations System. At, accessed Nov. 17, 2009. Provides access to current and historical General Assembly and Security Council Resolutions and Reports, as well as International Law Commission reports and publications.

UN Democracy. At, accessed Nov. 17, 2009. A private, non-UN site that provides access to verbatim transcripts of meetings of the five principal UN bodies – the General Assembly, the Security Council, the Economic and Social Council, the Secretariat, and the International Court of Justice. The site and transcripts are searchable by text in any statement or by country making any statement.


The author thanks Julie, Izzy, and Bondi for their unbounded patience, forbearance, and flexibility.