Summary and Keywords
One the most dramatic development in international law in the twentieth century is the formation and operation of international criminal tribunals. Unlike conventional international tribunals such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Military Tribunal at Nuremberg, are a controversial element of international law and international politics. Precisely because they are aimed at individuals who act “under color of law,” such as military officials or heads of state, they invoke a number of different political challenges and different concerns than do the more conventional international tribunals that adjudicate disputes between states. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large. Much of the scholarship on international tribunals can be summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each of these periods, reveal shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. In the future, much of the scholarship on international tribunals is expected to be influenced by the impact that the actual tribunals themselves have on international politics.
The formation and operation of international criminal tribunals is perhaps the most dramatic development in international law in the twentieth century. While international human rights were often considered to have normative value, at least in philosophy and theology, and armed conflict has always been regulated by some formal or informal code of behavior (chivalry, bushido, etc.), the idea that the violation of these norms could be investigated and prosecuted by an international body resembling a domestic criminal court was largely unheard of (with a few important exceptions discussed below) prior to the close of World War II. Similarly the rhetoric of “criminality” has been a common weapon in the arsenal of wartime political propaganda, but few took these claims seriously, much less thought that real trials would settle these claims. The idea that political powers should come together and conduct the prosecution of specific individuals in an institutional context, much less one that conducted a recognizably fair trial, is a phenomenon, and one which raises many important questions about law, courts, and the nature of international institutions as such. Thus they serve as fruitful ground for scholars interested in the relation between norms and politics in the international system.
Unlike conventional international tribunals such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the International Military Tribunal at Nuremberg (IMT), the International Military Tribunal for the Far East (IMTFE), and the International Criminal Court (ICC) are a controversial element of international law and international politics. Precisely because they are aimed at individuals, particularly individuals who act “under color of law,” such as military officials or heads of state, they invoke a number of different political challenges and different concerns than do the more conventional international tribunals that adjudicate disputes between states, such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS), or conventional legal norms. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large.
Since the end of the Cold War and the creation of the modern international criminal tribunals, these institutions have begun to attract a great deal of scholarly attention. There are a number of reasons for this: first, these criminal tribunals are novel, meaning that there are many underdeveloped features to them – fodder for academics seeking to “make their bones.” Additionally, they have garnered a great deal of press, meaning that they have attracted the interest of academics who might not be aware of the International Tribunal on the Law of the Sea. Finally, they engage in weighty matters involving the gross violation of human rights, a subject that most people take very seriously, further generating interest in the subject. Thus international criminal tribunals are a “sexier” topic than are conventional international courts, and have garnered the lion’s share of scholarly attention in recent years.
It should be noted that political scientists are largely latecomers to the discussions of international criminal tribunals. Until recently, the vast majority of the work that was done on these institutions was done by lawyers and diplomats. This means that their studies were largely interested in the norms that are applied by these courts and their value for foreign policy, and not in the processes by which they are created. Political scientists are relative latecomers to the study of international criminal tribunals and, as we will see, it is only in the last few years that they have begun to pursue the subject with their characteristic rigor. This means that in this analysis, I will be forced to combine legal, diplomatic, and social scientific analyses to do justice to the scholarship on criminal tribunals.
My analysis of the scholarship on criminal tribunals will be structured chronologically, but given the impossibility of being comprehensive, I will emphasize a certain set of themes that reappear in the various contexts where international tribunals are discussed. Much of the scholarship has been in reaction to institutional developments in the political sphere and the formation of novel tribunals, and therefore the history of scholarship on international tribunals cannot be separated from the history of the tribunals themselves. This means that we will have to examine the dialectical (for lack of a better term) relation between international tribunals and scholarly reflections on them. Moreover, scholarship on international tribunals can be fairly well summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each of these periods, separated by long pauses where there was no significant progress in the formation of international criminal justice institutions, and consequently little scholarship on the subject, reveal shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. I should note further that, given the practical challenges of a truly global analysis of international tribunal scholarship, the vast majority of my analysis will be discussing Anglo-American contributions.
Drawing on Shklar’s (1964) work, we will rely on the concept of “legalism” to examine many of the debates surrounding international tribunals. Legalists most generally hold the view that “moral conduct is to be a matter of rule following and moral relationships to consist of duties and rights determined by rules” (Shklar 1964:1). While legalists may hold different underlying political philosophies or subscribe to different broader ideologies about the nature of domestic and international politics, at their root they share a fundamental faith in the value of legal norms and procedures. This, however, does not mean that they necessarily support the formation of international tribunals: as we will see, many opponents of these institutions believe that they should be opposed because they are seen to be a perversion of cherished legalist principles. On the other hand, realists, not sharing this legalist agenda, oppose the creation of international tribunals because they may undermine national sovereignty or because they will fail to effectively constrain evildoers. As we will see, with a few exceptions many of the critics of these courts, whatever their political predilections, have been forced to articulate their objections through the lens of legalism, pointing to the ascendency of legalist ideology in debates about the courts. For a parallel, though broader, analysis of legalism in scholarship on international tribunals, see Vinjamuri and Snyder (2004:346–52).
A Brief History of Criminal Tribunal Scholarship
There was little development in theory and even less in practice on the subject of international criminal tribunals prior to the twentieth century. While there were often laws that constrained the behavior of military belligerents, violations of these norms were usually dealt with by the combatants themselves rather than by any “international” body. The most cited international trial prior to the modern era was the 1474 trial of Peter von Hagenbach for misdeeds committed while he was governor of the Burgundian city of Breisach. The trial, conducted by judges from the allied towns who united and overthrew him, led to von Hagenbach losing his knighthood and being publicly executed (Cryer 2005:19–21). While there are many aspects of the von Hagenbach trial that do not match with modern understandings of international law or international tribunals, it is widely cited as the earliest international criminal tribunal and, as Cryer (2005:21) points out, many of the challenges faced by, and objections raised to, von Hagenbach’s triers have been echoed in the modern era.
Beyond this isolated example, there are few successes in the pre-Nuremberg era that scholars could turn to for inspiration. As described admirably in Stay the Hand of Vengeance (Bass 2000), early efforts to create ad hoc international tribunals for perceived evildoers were met with futility. At the beginning of the nineteenth century, an international criminal tribunal had been proposed to deal with Napoleon Bonaparte and his allies after his definitive military defeat at Waterloo (Bass 2000:37–57). Beyond this isolated instance, which ended in failure, there is no definite record of a tribunal for dealing with international criminals until efforts in the early twentieth century, at the end of World War I, to prosecute Kaiser Wilhelm and the Ottoman leadership responsible for crimes – another set of efforts that ended in failure (Bass 2000:58–146). Unfortunately, there is little scholarship on these trials, and beyond a few historical studies there are almost no serious accounts of them. Viereck’s The Kaiser on Trial (1939), however, is a compelling fictional reconstruction of the Kaiser’s prosecution which is an interesting account of the causes of the Great War.
Prior to the Nuremberg tribunal, only a few permanent international criminal tribunals were proposed by scholars or diplomats. In the Council of the League of Nations’ Advisory Committee of Jurists, Baron Descamps of Belgium proposed a “High Court of International Justice,” as did the British representative, Lord Phillimore, who published his views in the British Year-Book of International Law (Phillimore 1923; Jørgensen 2003:29). An effort to link such a body with the nascent Permanent Court of International Justice was unsuccessful, however (Jørgensen 2003:29), and other scholarly calls for an international criminal tribunal between the world wars were marginal. For some representative examples see Wright (1925) and Colannyi (1928).
Nuremberg: Defenders and Critics
Though the failure of the League of Nations and the ensuing World War II showed the limitations of international institutions for maintaining global peace, it gave new gravity and haste to discussions regarding international criminal tribunals. Simply put, the Allied powers needed to do something with members of the Nazi government and of the German military who had been captured at the end of the war. Famously, two tribunals were successfully created in Nuremberg and Tokyo to handle the military and political leaders of the Axis governments and to give them a trial that was accorded with legalist understandings of due process. These tribunals represented a watershed moment in the creation of an international justice system for many reasons. Beyond the fact that they were the first international criminal tribunals in the history of international law to successfully run trials, convict and acquit defendants, and carry out sentences, they additionally mark the beginning of the predominance of a legalist approach to international atrocities and the pro-gressive marginalization of realist skeptics. Even though these legalist theories would remain largely dormant for five decades after the war, they would slowly reshape discourse about international relations and the acceptable responses to gross violations of human rights.
Advocates of Nuremberg (academic, diplomatic, legal, and political), at least those writing in the West, were firmly in the aforementioned “legalist” camp, and wanted the court to be a model of procedural fairness. Many of the best-known advocates of the tribunal were not academics, but rather were diplomats and policy makers occupying high levels in the Allied governments. Inside the Roosevelt administration, Secretary of War Henry Stimson, for example, waged a low-level political war against Treasury Secretary Henry Morgenthau regarding the appropriate way to handle the Nazi leadership, arguing that trials were the most appropriate way to deal with them: “the very punishment of these men in a dignified manner consistent with the advance of civilization will have all the greater effect upon posterity” (Stimson 1944:4). He was allied with like-minded policy makers including Herbert Wechsler, John McCloy, and Samuel Rosenman, whose writings on the subject are all policy briefs, not academic studies (Maguire 2002:91). In fact, there are very few scholarly references to international military tribunals or international criminal tribunals in the academic literature in the years leading up to the court. An important exception is Sheldon Glueck, whose work War Criminals: Their Prosecution and Punishment was, according the Nuremberg Chief Prosecutor (and Supreme Court Justice) Robert Jackson, “Substantially the system pursued throughout the Nuremberg trial” (Rheinstein 1946/47:319). Another interesting exception to this is The Day of Reckoning (Radin 1943) – a fictional account of an international trial of Adolf Hitler written by legal scholar Max Radin. Radin also published an important defense of the Nuremberg Tribunal in Foreign Affairs (Radin 1946), responding to many of Nuremberg’s critics.
Among the Nuremberg skeptics were those representing the classical diplomatic and military perspectives. A large number of American military officers and those allied with them rejected the idea of prosecuting an enemy’s military leadership and vocally expressed their objections to the Nuremberg trials. Much of their skepticism focused on the prosecution of Doenitz, the German admiral who was prosecuted at Nuremberg for (among other crimes) war crimes at sea. These harsh reflections, coming from diplomats, military commanders, and public officials from around the world, were collected in an anthology entitled Doenitz at Nuremberg: A Re-appraisal edited by H.K. Thompson and Henry Stutz (1983). Others include the Indian judge Radhabinod Pal, whose lengthy dissenting opinion for the Tokyo Tribunal consists of a blistering attack on the legitimacy of the international tribunal itself as well as the application of criminal law to those defeated in wartime (Pal 1946). Each of these critics in some form or another represents a realist perspective, asserting that governments had no place judging the behavior of political actors, particularly those in uniform.
There were also some potent legalist skeptics towards Nuremberg. Many of these legal critics denounced Nuremberg as a legal aberration, an insult to the principles of the rule of law central to the Western legal system. The best-known skeptic of Nuremberg from this approach was Ohio senator Robert Taft, who argued in a famous speech at Kenyon College that the institution reeked of vengeance and ex post facto justice and, as such, undermined America’s commitment to the rule of law. Taft’s criticism of international tribunals initially met with strong denunciations from international lawyers as well as many in his own party, but they have echoed down into the modern era, as we will see, being taken up by a number of skeptics of the post-Cold War international tribunals (Wunderlin 2005:111–12). For his efforts, Taft was given a place in John F. Kennedy’s Profiles in Courage (1956/2005:193–205). The philosopher Sidney Hook published a critique of Nuremberg (1945) and Milton Konvitz likewise attacked Nuremberg as ex post facto justice (1946).
It should be noted that none of the “Nuremberg skeptics” supported amnesty for the Nazi leadership. In fact, many of them argued in favor of summary execution for Hitler, Goebbels, and others. As Max Radin put it, “There could have been little or no objection if these men had been shot by military firing squads when captured” (Radin 1946:373). The concern that was held by many of the diplomats, politicians, scholars, and others who were skeptical of the tribunal was that the irregular justice that such a trial must provide would tarnish the values of liberal democracy and due process that were at the core of Western legal thought. In particular, the charge was that such a trial could only provide ex post facto law with procedural norms that did not meet standards of justice existing in domestic, civilian, criminal courts. To give such decisions the stamp of legal legitimacy is to denigrate law. As the skeptic Max Rheinstein (1947:320) put it in his critique of Glueck’s The Nuremberg Trial and Aggressive War, “Whatever legal arguments may be adduced by the keen mind of a lawyer, the problem of punishing the instigators of an aggressive war is also a political one.” Thus many, though not all, skeptics towards the International Military Tribunal at Nuremberg were legalists upholding the values of the rule of law by denying their applicability to the international context. Many of the diplomatic, legal, and political documents surrounding the Nuremberg trial are collected in Marrus (1997), which is a useful guide for any scholar beginning to look at Nuremberg in its historical context.
Post–Cold War International Criminal Tribunals: The Ad Hoc Tribunals and the ICC
While the Nuremberg tribunals, and to a lesser extent their Asian counterparts, were met with acclaim and still are to this day, their influence was muted as the Cold War began to hold international society in its grip and the idea of international trials lost its appeal. The end of that conflict, however, opened up new political possibilities. As a result of conflicts in the former Yugoslavia and Rwanda, two “ad hoc” tribunals were formed under the auspices of the UN Security Council. In addition, the permanent International Criminal Court was created through a treaty drawn up at the Rome Conference in June 1998. As with much of the history of international tribunals, the scholarship ran “alongside” political developments, meaning that advocates of the formation of international tribunals were closely connected to the diplomats and policy makers who were shepherding these tribunals through their respective birth processes. Of particular note here is the work of M. Cherif Bassiouni, whose prolific writings on the subject, including a draft International Criminal Code (Bassiouni 1987), proved tremendously influential and guided many scholars and diplomats in the 1990s.
Gary Bass’s (2000) Stay the Hand of Vengeance summarized the dynamics of the legalization movement and its incessant push for the formation of international tribunals. In this work, he carefully examines the development of virtually every criminal tribunal (both real and proposed) since the efforts to punish the supporters of Napoleon in France after Waterloo (although the Rwanda and Tokyo tribunals are noticeably absent). His view about the formation of these tribunals involves a sophisticated theory of the behavior of foreign policy elites in liberal societies: liberals, by the internal logic of their ideology, are driven to frame problems in terms of rules and fair procedures that ought to apply to everyone – the essence of legalism. Bass makes five assertions about the creation of international tribunals (2000:28–36):
(1) Only liberal states will purse legalistic agendas, such as international tribunals.
(2) Liberal states will not pursue tribunals if their own citizens are placed at risk by doing so. (What Bass calls “the Scott O’Grady phenomenon” in reference to a US pilot captured by Serbia who was rescued at great cost by the US.)
(3) States will be more outraged at the abuse of their own people than at the abuse of foreigners, even civilians.
(4) It is not enough for a foreign country to have committed atrocities to stoke the formation of international tribunals; there must be public demand for such tribunals, demand that takes the form of “outrage.”
(5) Nongovernmental organizations play a key role in promoting and supporting international tribunals as a way to resolve disputes.
These propositions shape the remainder of Bass’s historical analysis of international tribunals, the first and best longitudinal study of the politics around the formation of international criminal tribunals in response to mass atrocity.
Perhaps the most important scholarly contribution stemming from the UN-backed ad hoc tribunals was the 1995 TadiL opinion of the ICTY’s Appeals Chamber. In this opinion, the court was forced to confront an attack on its own legitimacy as an institution and thus justify its existence as the defense charged that the court was illegally established. In a carefully reasoned opinion, the court charged that the UN Security Council was legitimately authorized under the UN Charter to establish the tribunal and that the court was lawfully constituted, concluding, among other things, that the “important consideration in determining whether a tribunal has been ‘established by law’ […] is that it be set up by a competent organ in keeping with the relevant legal procedures and that it observes the requirements of procedural fairness” (ICTY Appeals Chamber 1995:23). Alvarez (1996) was critical of the reasoning, arguing that it did not go far enough to legitimize the tribunal, and Judge Li in a separate opinion to the ruling argued that that was unnecessary. Others, such as Warbrick (1996), were more positive about the opinion, but any serious study of the normative, legal foundations of the courts, in particular the ad hoc tribunals, must study the TadiL opinion.
Without a doubt, the most understudied group of post-Cold War international criminal tribunals are the so-called “mixed” or “internationalized” tribunals established in Cambodia, East Timor, Sierra Leone, and Kosovo. These courts, deploying both international and domestic law and adjudicated by judges appointed by international bodies and local authorities, combine the positive aspects of domestic courts (local expertise and a “native stamp” on justice) with the accountability provided by international justice. These tribunals have proven very effective in conducting trials in difficult political circumstances. Romano et al. (2004) have published a very useful anthology of studies on these tribunals, and Dickinson’s (2003) defense of them is also very useful. As Dickinson points out, “Interestingly, one reason the hybrid courts have received comparatively little attention so far may be that their very hybridity has left them open to challenge both from those advocating increased use of formal international justice mechanisms and those who resist all reliance on international institutions.” (Dickinson 2003:296) However, she argues that these tribunals nicely complement the other approaches to international justice. Roper and Barria’s Designing Criminal Tribunals (2006) provides some account of the political processes that helped shape these, alongside other international tribunals. Given the experimental nature of these tribunals, their future will depend on the role that the existing tribunals play in the process and the judgments of politicians and scholars.
The ICC and Tribunal Skeptics
The ad hoc tribunals were limited in scope and had no jurisdiction over America or its allies, so while they did raise eyebrows in the American academy, they did not generate anything like the excitement that the permanent tribunal, the ICC, did. Because the ICC’s jurisdiction is open-ended and it is granted a healthy measure of autonomy under its statue, it was viewed as a much more provocative development, particularly by those scholars who maintained the skepticism of the Nuremberg critics, and in fact much of the scholarly reflection on these tribunals echoes the debates surrounding Nuremberg, although with increased complexity. It is interesting to note, however, that the ideology of legalism outlined by Shklar (1964) was so entrenched in many perceptions of the international order by the end of the Cold War that most of those who debated the merits of these tribunals, including their skeptics, debated these institutions primarily in a legalist fashion. Thus at the forefront of these debates were questions about the procedural fairness of the tribunals, their impartiality, and their ability to provide the benefits that one pursues when invoking formal criminal justice procedures (deterrence, incapacitation, retribution, and restoration). Fewer realist rejections of tribunals, such as those echoed in the face of Nuremberg, remained, or at a minimum they are not the loudest voice among Anglo-American scholars.
Moreover, concerns about the dangers posed by international tribunals were paired with concerns about other developments happening alongside these courts in the 1990s. In particular, the high-profile prosecution of the retired Chilean dictator Augusto Pinochet in England raised concerns among many that the principle of “universal jurisdiction” – the principle that certain crimes could be prosecuted anywhere, regardless of what state they were committed in – would be added to the quiver of those idealists who sought international justice. Skepticism towards universal jurisdiction was often lumped together with skepticism toward the ICC. Criticism of universal jurisdiction was most famously put forward by Kissinger, who in an oft-cited work (2002:273–82) showed a good deal of concern about the extension of criminal jurisdiction across national borders, including through the ICC. Some of these skeptical concerns were helpfully compiled in two anthologies – The International Criminal Court and the Quest for Justice (Driscoll et al. 2004) and The United States and the International Criminal Court (Sewall and Kaysen 2000), which are useful reading for understanding the early skepticism that the ICC faced in America.
Realist Skepticism toward the ICC
These realists have charged that the ICC and other international criminal tribunals are dangerous because they hamper the ability of diplomats to broker peace. Regardless of how unpleasant it may be to provide blanket amnesty to those who committed mass atrocities, it may be required to preserve order in the aftermath of a large-scale conflict. Goldsmith and Krasner (2003:54–5) argue that international prosecutions paradoxically threaten international peace and stability, as “The ICC could initiate prosecutions that aggravate bloody conflicts and prolong political instability in the affected regions. The best strategy for stability often depends on context and contingent political factors.” Thus, unlike legalists, this realist argument, which I have elsewhere called the view of the “prudential diplomat” (Fichtelberg 2008), asserts that legalist ideology fosters an unacceptably rigid view of world politics, one which could easily prove more harmful than beneficial for humanity. This quasi-pragmatist stream of scholarship on international tribunals is explored in more depth in Vinjamuri and Snyder (2004:352–6).
Eric Posner and John Yoo have resurrected another sort of realist objection to international courts, claiming that international tribunals, to the extent that they operate independently of domestic governments, pose a danger to international peace and stability, and, equally importantly, will prove irrelevant on the international stage (Posner and Yoo 2005). As they put it:
Independent tribunals pose a danger to international cooperation because they can render decisions that conflict with the interests of state parties. Indeed, states will be reluctant to use international tribunals unless they have control over the judges. On our view, independence prevents international tribunals from being effective
(Posner and Yoo 2005:7).
Anne-Marie Slaughter and Laurence Helfer have engaged in a spirited debate with Posner and Yoo about this claim, and in a lengthy rebuttal (2005) sought to refute them by charging them with selectivity in their empirical analysis.
Legalist Skepticism toward the ICC
Among the legalist objections are questions about the ability of international judges to be objective, particularly when they evaluate international legal claims involving their own states. In one piece, conservative scholars Posner and de Figueiredo examined the history of ICJ rulings and concluded that there is
strong evidence that (1) judges favor the states that appoint them and that (2) judges favor states whose wealth level is close to that of their own states, and weaker evidence that (3) judges favor states whose political system is similar to that of their own states and that (4) (more weakly) judges favor states whose culture […] is similar to that of their own states
(Posner and de Figueiredo 2005:599).
Other empirical investigations of international tribunals show that the fears of bias in international courts are largely unfounded. Meernik examined all of the sentences handed down by the ICTY and discovered that judges largely followed the paradigm of legalism to examine the sentences handed down by the tribunals, concluding that:
Those individuals guilty of the worst crimes, those who were convicted of the most offenses, and those with the most responsibility for crimes would pay the highest price […]. Conversely […] there is little evidence to suggest that there were political factors at work in either the judges’ verdicts or sentences
A similar study conducted by Meernik et al. (2005), examining gender in the international courtrooms, has similarly found that, while there is a complex story to be told, in general the ICTY has vigorously prosecuted sexual assault and other gender-based crimes.
The second legalist line of attack against international tribunals by these neoconservative critics is the claim that US law can never be subordinate to international rulings and that deference to international courts is at odds with principles of American law. In relation to international criminal tribunals, the critics claim that international criminal tribunals lack many of the procedural safeguards that would exist in a domestic tribunal and thus that cooperation with the ICC would, at times, be unconstitutional. The lack of a jury, for example, stands in contrast to the US Constitution’s Sixth Amendment requirement that a criminal suspect be tried by a jury of her peers. Wedgewood (2000) argues along this line, asserting that the ICC’s procedures are incompatible with American due process norms. Another critic, Madeleine Morris (2001; 2002), argued that international tribunals lack democratic legitimacy, particularly when they assert jurisdiction over individuals whose governments have not ratified the ICC statute. In a related vein, Powell argues that international courts should integrate a jury system into their proceedings (Powell 2004). These skeptics received some support in 2008 from the US Supreme Court in its Medellin v. Texas, when, in a 6–3 decision, that body rejected the application of an ICJ decision regarding the execution of foreign nationals without proper consular notification to US state courts.
International Criminal Tribunals and Criminal Justice
Along with the political discussions of the effects of international tribunals on the global relations among states, a number of different, criminologically informed studies of the nascent international criminal tribunals began to be published in the 1990s. Rather than asking whether or not these tribunals would pacify the international order as earlier academics had hoped, these scholars began to ask questions that have been traditionally posed regarding domestic criminal courts: Would they deter would-be international criminals? Could they provide adequate justice in a retributivist sense? Would they contribute to the victims’ efforts to “heal” and move beyond their vicitimization? While this field of the study of international tribunals is novel (with a few important exceptions, such as Arendt (1994), there is a growing body of literature that confronts the novel challenges of trials and punishments in the international context (Henham 2003). The growing number of scholars addressing questions of this sort (some of whom are in criminology departments), in many ways represents the triumph of a legalist framework for examining international tribunals. By examining the ability of international tribunals to provide the goods we expect from conventional criminal justice processes, they are moving the discussion away from whether they should exist at all to how they should operate so as to closely mirror their domestic counterparts.
One important study in this vein, Drumbl’s Atrocity, Punishment, and International Law (2007) analyzes in some depth the penological jurisprudence of the international criminal tribunals, but does not dwell on the theories behind these penal concepts and their utility in the international sphere, and the work done on these subjects is only beginning to unfold. With this in mind, here we will briefly examine some of the scholarly debates on the deterrence, truth-telling, retribution, and reconciliation tasks of criminal courts in relation to the international criminal tribunals.
Of course, a criminal justice system should deter would-be criminals, and a few scholars have begun to think carefully about the deterrent effect of international justice. In a game theoretical study, Ku and Nzelibe (2007:777) argue that the relatively weak punishments meted out by international tribunals (which, since Nuremberg, have excluded the death penalty or any sort of corporal punishment) means that “Prosecution by an [international tribunal] will often serve as a weaker substitute, rather than a complement, to pre-existing sanctions,” although in many circumstances ICT prosecutions might not only fail to deter humanitarian offenders, but might actually exacerbate atrocities. Unfortunately, there have been few, if any, empirical studies of the deterrent effect of international tribunals, although it would presumably be very difficult to thoroughly examine such a question, given the few cases available.
Reconciliation and Truth Telling
Finally, building on the restorative justice movement and the scholarship on transitional justice (Teitel 2000), international criminal tribunals, like domestic ones, ostensibly have the fostering of reconciling groups in conflict as a goal. Alongside this, a criminal trial in the international context is expected to tell a convincing narrative of what happened in a complex situation where conflicting sides disagree about the nature of the events that took place. Domestic courts can do this by producing a definitive record stamped with the authority of the state, and international tribunals are to some extent expected to do the same thing. There have been numerous studies that have examined the historiographic role of international tribunals.
One of the most-developed arguments along with this line is from Mark Osiel (1997), who argues that criminal trials for those who violate human rights on a large scale “Contribute significantly to a certain, underappreciated kind of social solidarity, arising from reliance on procedures for ensuring that moral disagreement among antagonists remains mutually respectful, within the courtroom and beyond” (Osiel 1997:3). Osiel recommends that jurists remain attuned to the pedagogical and dramaturgical dimension of international tribunals in order to achieve the best possible outcome.
This view of international tribunals has led to some skepticism, especially when criminal tribunals are compared to non-penal institutions such as truth commissions. This line of skepticism was put forward by Koskenniemi (2002), who argued that tribunals are ill-equipped to handle the politically complex world of international relations, and are incapable of providing an adequate “truth” of complex political events. Another scholar who has suggested that the restorative dimension of international tribunals is weak is Fichtelberg (2005). At least when compared to domestic criminal courts, the possibility of international trials fostering reconciliation in the case of international or domestic conflict is not strong.
The retributive character of international punishment is the most abstract and philosophical question that international criminal tribunals must face; after all, what punishment could “fit” the crime of genocide? The most thoughtful contribution to the literature on this subject was explored by Hannah Arendt when observing the trial of Adolf Eichmann, in Eichmann in Jerusalem (1994). There she reflects on the meaning of punishment in the context of such awful deeds. In addition, while observing the Nuremberg trials, she noted, “For these crimes, no punishment is ever enough. It may well be essential to hang Göring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems” (quoted in Bass 2000:54), a point on which this author has written (Fichtelberg 2005). Henham (2003:68), on the other hand argues that the retributive model of punishment is out of favor for international justice because “in the context of the ad hoc tribunals, retribution in international justice has been more readily equated with the concept of victor’s justice; vindication and western exculpation; the symbolic manifestation of hegemony” (see also Bassiouini and Manakas 1996:228–31). Crimes of such massive scale do not easily fit within classical penological theory and thus present difficult challenges for retributivist theory (Fichtelberg 2005).
Explaining the ICC
A final stream of scholarship on international tribunals comprises the somewhat more conventional international relations scholars who examine the formation and functioning of international tribunals using different theories of international relations (realism, liberalism, constructivism, etc.). As Abbot (1999:364), in his study of the connections and disconnections between international relations (IR) theory and other approaches to international justice points out, “There is relatively little IR literature analyzing the atrocities regime,” and there is scant evidence that he is incorrect. Many of the scholarly works on the subject are “weakly theoretical” in the sense that they use IR theory as a guide for analyzing political history and contemporary issues of international politics but resist reaching strong theoretical conclusions from their accounts. Schiff’s Building the International Criminal Court (2008) uses these theories in an account of the creation of the ICC and its early experiences. Maogoto (2004) takes a similar approach, although focusing more closely on the impact of the laws of war and taking a broader historical perspective. Struett (2008) offers an analysis of the power of NGOs to muster a normative discourse to shepherd the ICC through the formation process at the Rome Conference. While each of these approaches is important, they are largely historical and avoid arriving at any strong theoretical conclusions.
Abbot (1999) takes a synoptic view, examining the contributions of IR theory to understanding the legal regime governing human rights violations in contrast to legal theory and is important for understanding the methodological divisions between IR scholars and international legal scholars. Rudolph (2001:685) defends a largely realist view regarding the creation of ad hoc tribunals, asserting that “expanding liberal norms of state conduct and protecting human rights certainly explain the existence of tribunals in locales with little strategic or material importance.” In contrast to institutionalism, Rudolph argues that, at present, there is little evidence that international criminal tribunals influence state behavior in regard to internal atrocities, although he concedes that the international regime is still a work in progress.
One of the few pieces to take a heavily theoretical approach to the ICC, trying to explain its creation and its structure, is Fehl (2004). Examining the creation and design of the ICC, Fehl asserts that rationalist theories are incapable of completely explaining the creation of the ICC and must be complimented by a constructivist account. Such theories “cannot explain why most states were unwilling to make sufficient concessions to secure the support of powerful states, which seems essential to the ICC” (Fehl 2004:383). Constructivists can complement and supplement the realists and provide a more robust account of the ICC, but still Fehl asserts that further theoretical work is required to have an adequate account of the court. Similarly, Cohen (1997) uses liberal and realist theories to examine the creation of the Nuremberg Tribunal and the ICTY, concluding that each makes a contribution to understanding the impetus for the tribunals as well as their successes and failures. While realists can explain the successes of Nuremberg in their own framework (that is, the maintenance of stability in the international order) and liberals cannot (Cohen 1997:143–4), the Bosnian trial, which was still ongoing at the time the article was written, is more challenging to both theories, neither of which can make sense of the subject (Cohen 1997, 169–70).
However, perhaps the most in-depth explanatory approach to the ICC was developed by Leonard (2005), who puts the creation of the ICC in the context of contemporary scholarship on global governance. Relying on an approach that uses comparative analytical perspectives, Leonard examines neoliberal institutional approaches, regime theories, and global governance to examine the formation of the ICC. Relying on Allison’s work (1971) on the Cuban Missile Crisis, Leonard points out the different ontological assumptions, causal analyses, and interests that inform each theory’s account of the genesis of the court. Leonard ultimately concludes that the ICC represents a change in the nature of global politics and its governance and a potential shift away from a Westphalian, sovereignty-based world order and towards an order based on transnational institutions (Leonard 2005:191). While Leonard himself is far from committed to such a radical conclusion (as he puts it (2005:207), “the global system may be transforming but it has not yet transformed”), his work represents in many ways the most thorough examination of the formation of the ICC using the explanatory models of classical international relations theory.
In recent years, more book-length studies of the international criminal tribunals have been published, each developing a nuanced understanding of the connection between “law” and “politics” in the creation and operation of these courts. Major works examining the origins and development of the international criminal tribunals that are particularly noteworthy are Moghalu’s Global Justice (2006), Roach’s Politicizing the International Criminal Court (2006), and Roper and Barria’s Designing Criminal Tribunals (2006). Moghalu, relying on the “English School” of international relations theory, seeks explicity to contradict’s Bass’s (2000) liberal approach to international tribunals. By arguing that the decision to construct criminal tribunals is a political process and not strictly speaking a legal one, Moghalu’s historical account of the various decisions made around tribunals by political actors provides much-needed depth to the analysis of the subject and serves as an effective counterpoint to Bass’s influential study. Roach’s Politicizing the International Criminal Court (2006) and Roper and Barria’s Designing Criminal Tribunals (2006) make valuable contributions that provide compatible accounts of the formation of these courts. Roper and Barria, in particular, analyze the later tribunals such as the aforementioned mixed tribunals, examining “how the political compromise which established these tribunals impacted the delivery of justice for victims and the rights of the accused” (Roper and Barria 2006:3), and thus “have not been based on considerations of how to best provide justice to victims but rather have been based on the need to forge a political consensus” (Roper and Barria 2006:13). Roach (2006:8) uses the concept of “political legalism,” essentially the idea that the normative commitments of law are always applied in a context of political interests in a way that is “open-ended and dynamic.” Each of these texts develops a nuanced account of how these tribunals are created and the institutional pressures that they face.
Judith Kelley’s (2007) article examining acquiescence to US demands that nations sign “Article 88” agreements, immunizing American citizens from international custody, is also required reading for those looking at the ICC in the context of international politics. Examining the empirical data in relation to the theories regarding the importance of norms in international politics, she concludes, contra realism, that “many states rejected nonsurrender agreements because of their affinity for the court or because of their respect for the rule of law” (Kelley 2007:586) Thus rather than using IR theory to understand the court itself, Kelley effectively uses the reaction of the US and other states as a measure for examining the role that norms play vis-à-vis interests in international politics.
Despite these promising contributions to the subject, the traditional explanatory project that is the bedrock of many other parts of international relations is still marginal to scholarship on international tribunals (as international criminal tribunals are marginal to IR more generally), for a number of reasons. The aversion among realists to normative institutions may explain it in part, as would the predominance of lawyers in tribunal scholarship, who, as has already been discussed, study these institutions with a different set of conceptual tools than do IR scholars and possess a very different theoretical and normative agenda. While international legal scholarship is not antithetical to IR theory, the different emphases place the two approaches in tension and their different intellectual heritages make cross-fertilization a sometimes frustrating experience. In short, there is a great deal of work remaining to be done from the standpoint of traditional IR theory in understanding the formation and operation of all of the international tribunals for those willing to bridge this divide.
International Courts and Legal Theory
While this essay is primarily concerned with scholarship on the institutions of international justice, and not on the law that they apply, there have been many important contributions to the development of a legal theory that justifies international prosecutions and many of the debates about the IMT, the ICC and the other tribunals have revolved around the question of which types of law they may legitimately apply. Since the founding of most of these tribunals, critics have charged that these courts only apply ex post facto law and alleged that international laws have no legitimate bearing on individuals. Similarly, positivists have argued that all law is a product of national government and it is only through these governments that any law can be applied. These criticisms, with some justification, were made at the postwar tribunals, which relied on the very loose construction of the Kellogg-Briand Pact and similar documents to justify their prosecutions. However, since then, in part because of the contribution of academic legal scholars and in part because of the work of diplomats who have helped codify international criminal law norms, there is a great deal of legal material explaining and justifying international criminal prosecutions.
Important studies of the legal foundations of international criminal tribunals include Bassiouni’s long list of groundbreaking works on the subject. Particularly, the two-volume study he edited titled International Criminal Law (Bassiouni 2008), his lengthy account of crimes against humanity (Bassiouni 1999) and his draft international criminal code (Bassiouni 1987) are all important contributions to thinking about a truly international criminal law. He also helped edit an important casebook on the subject which provides access to a number of valuable scholarly pieces as well as many significant documents and cases (Paust et al. 2006). Equally important is Accountability for Human Rights Atrocities in International Law (Ratner and Abrams 2001), which lucidly explains some of the basic elements of international criminal law. Broomhall explores the tension between national sovereignty and the promises of the ICC, arguing that “an institutionalized rule of law, in the robust sense, remains fundamentally at odds with the world system as it now exists” (Broomhall 2003:3). In a similar vein, although devoid of the tension that concerns Broomhall, Larry May’s thoughtful book Crimes against Humanity (2004) seeks explicitly to develop the normative foundations for international crime rooted in a Hobbesian conception of international relations. Equally important is Robert Cryer’s Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005), which includes a helpful history of both the theory and the practice of international criminal law from antiquity to the present day. Another excellent study of substantive international criminal law is Werle’s Principles of International Criminal Law (2005), which also has a useful discussion of the foundations of the international criminal law regime (Werle 2005:1–89).
In addition, a number of important journals have begun to focus on international criminal tribunals. In particular, the Journal of International Criminal Justice, under the editorship of Antonio Cassese, and the European Journal of International Law have become focal points for analyzing and debating aspects of international criminal law and should be consulted for recent developments in the field.
While there is a great deal more written about the substance of international criminal law and its underlying theory, the procedures that are used by the international criminal justice system are not as well spelled out, and judges, particularly in the higher courts of the various institutions, have been left to “fend for themselves,” developing doctrine on a case-by-case basis. The best systematic study of international criminal procedure is Towards an International Criminal Procedure by Christoph Safferling (2003), but other studies have appeared. Cryer et al. (2007:301–92), Boas and Schabas’s (2003) anthology of studies of the procedures of the ICTY, and the textbook Defense in International Criminal Proceedings: Cases, Materials and Commentary edited by Bohlander et al. (2006), are important studies of the subject. Zappalá (2003) also explores the normative basis of international criminal procedures using human rights law as his guide, arguing that “human rights protection before international criminal courts is, to a large extent, satisfactorily ensured” (Zappalá 2003:244). Volume 2 of Bassiouni’s International Criminal Law (2008) is also a useful guide for understanding international criminal procedure. While this is probably true on paper, at least in regard to the ICC, any definitive conclusion on the subject will have to wait until the court has functioned long enough for its procedures to be put to the test.
It is likely that, as international criminal law develops – that is to say, as treaties are codified and interpreted by scholars, and as the courts process cases – the question first raised at Nuremberg about the applicability of international laws to individuals will largely fade. While the international criminal regime does raise profound questions about the nature of law and its applicability beyond the domain of the sovereign nation-state, these questions are only pertinent if the tribunals do not operate in a fair and reasonable way. Assuming that states continue to recognize a value to this corner of international law, scholars of the subject will focus on the substance of the law without feeling compelled to justify to legal regime to skeptics.
What will the future of scholarship look like for international tribunals? We can predict that scholarship on international tribunals will probably develop in a few important directions. On the one hand much of the scholarship on international tribunals will be influenced by the impact that the actual tribunals themselves have on international politics. Rather than being purely speculative theories, they will become enmeshed in empirical studies examining the impact of these tribunals. As we have seen, modern scholarship of international tribunals, at least since the end of the Cold War, has largely developed alongside the actual institutions themselves. If they succeed in dealing with difficult cases then scholarly interest will increase; if the court loses its nerve or acts ham-handedly, interest will wane. Additionally, more data will allow political scientists to examine the effectiveness of international trials for deterring would-be offenders and providing the other goods that we expect from institutions of criminal justice, and we will probably be in a better position to evaluate their overall utility. If they live up to the expectations of their advocates, we can expect more reliance on the tribunals and more scholar–advocates.
The remaining series of debates will revolve around the legitimacy of these trials; that is, whether or not they can operate in a way that is both procedurally fair and not unjustifiably selective or systematically biased. At present, no representative of a major power that has been successful in armed conflict has been prosecuted by an international tribunal, despite the fact that a number of powerful leaders have been involved in activities that many deem to be prima facie criminal. The fact that these leaders are unmolested will continue to raise questions among international observers about the legitimacy of these courts. Feminist scholars have only weighed in at the margins of international criminal justice (Mackinnon 2006), as have postcolonial scholars. Further contributions from these important fields, coupled with more integration between the community of legal scholars and those representing more conventional methods of international relations, would go a long way toward ensuring a vigorous debate on the nature and role of international criminal courts in a global society.
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Here are the websites for the various extant international criminal tribunals.
International Criminal Court: www.icc-cpi.int, accessed Oct. 13, 2009.
Internationalized tribunals: The Special Court for Sierra Leone: www.sc-sl.org.
The Kosovo courts established under the UN’s Mission in Kosovo do not have an independent website, but the UN mission’s website is www.unmikonline.org/Find this resource:
East Timor’s tribunal does not presently have a website.
Cambodia’s tribunal (The Extraordinary Cambers in the Courts of Cambodia): www.eccc.gov.kh/. In addition, the weblog www.cambodiatribunal.org/ has a good deal of useful information about the tribunal’s proceedings.
Links to Digital Materials
Global Policy Forum. At www.globalpolicy.org/international-justice.html, accessed Oct. 13, 2009. Carries useful information and links to a number of different tribunals.
The Project on International Courts and Tribunals. At www.pict-pcti.org, accessed Oct. 13, 2009. A collection of historical, legal, and scholarly material on various international courts and is a good resource for studying international tribunals.
University College London, Centre for International Courts and Tribunals. At www.ucl.ac.uk/laws/cict, accessed Oct. 13, 2009. Carries useful information, including scholarly work, on different international tribunals.