New Book Project: A Genealogy of International Criminal Law

Readers will recall that I followed the progress of my book on the Nuremberg Military Tribunals on the blog, from proposal to finished project.  I received a great deal of positive feedback on those posts, as well as some very useful feedback on the project itself.  (Also a couple of complaints that I was just being narcissistic, but you can’t please everyone.)  So I thought I would do the same thing with my next book, which I will start working on full-time in a few months.  Its somewhat pretentious title is A Genealogy of International Criminal Law, and it will be published by Oxford University Press in 2014 or early 2015.  I can’t say enough good things about publishing my first book with OUP — John Louth, Merel Alstein, and their crew were an absolute pleasure to work with.  They were unfailingly helpful, supportive, and (above all) understanding.  As long as they were willing to have me, I wasn’t going to even consider a different press.

The new book hopes to provide the first comprehensive historical-theoretical study of the process of international criminalization.  Here is the introduction to the proposal I submitted to OUP:

It is an article of faith among international criminal law scholars that certain acts are directly criminalized by international law.  We no longer speak, as Georg Schwarzenberger once did, of “internationally prescribed municipal criminal law” or “internationally authorized municipal criminal law.”  Instead, we talk about “international crimes” – aggression, war crimes, crimes against humanity, genocide.  And we have a 63-page treaty, the Rome Statute, that not only defines those crimes, but also explains how individuals can be held criminally responsible for their commission and specifies the defences that they can raise when accused of them.  There is thus no longer any real doubt that international criminal law exists in the “strict” or “true” or “material” sense.

Needless to say, it matters whether an act is criminal under international law or under domestic law.  Because we now have “international crimes,” not simply municipal crimes that are prescribed or authorized by international law, defendants accused of such crimes cannot argue that their actions were legal under domestic law or were taken in their official capacity, entitling them to immunity from prosecution.  In the words of the Nuremberg Tribunal:

Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorising action moves outside its competence under international law.

Nor is that all.  Because there are international crimes, international law permits, and sometimes even requires, states to prosecute them no matter where, by whom, or against whom they are committed – conditional universal jurisdiction.  Because there are international crimes, states are likely obligated to prosecute or extradite suspects in their custody who commit them – aut dedere, aut judicare.  And, of course, because there are international crimes, there are international criminal tribunals that have the authority to prosecute them.

Despite the importance of the “international” in the concept of an “international crime,” scholars have almost completely ignored the mechanics of the international criminalization process.  What does it mean to say that an act is directly criminalized by international law?  How does that transposition of the municipal to the international occur?  One looks almost in vain for answers to these questions in the scholarly literature.  No book-length analysis of international criminalization exists, and the number of articles dedicated specifically to that issue can be counted on two hands – the most notable examples being Georg Schwarzenberger’s “The Problem of an International Criminal Law,” published in 1950, and Robert Cryer’s superb “The Doctrinal Foundations of International Criminalization,” published in 2008.

This book will fill that lacuna.  Merriam-Webster defines a genealogy as “an account of the origin or historical development of something.”  That something, in this book, will be international criminal law itself.  The book will be structured around three interrelated questions.  The first is methodological: under what conditions should a particular legal concept be recognized as forming part of the corpus of international criminal law?  The book will take a broad approach to that question, asking not only how categories of crimes become directly criminalized by international law – aggression, war crimes, crimes against humanity, genocide – but also how international criminal law determines specific instances of those categories: invasion as aggression; rape and pillage as war crimes; deportation and apartheid as crimes against humanity; forcible transfer of children as genocide; and so on.  It will also examine the process of international criminalization with regard to modes of participation, such as joint criminal enterprise and command responsibility, as well as the recognition of defences to criminal responsibility, such as superior orders and mistake.

As we will see, answering the recognition question is ultimately a question of how we theorize the formation of international law.  All of the formal sources of international law have played an important role in the development of international criminal law.  Without treaties, for example, genocide and the crime against humanity of apartheid would not exist.  Similarly, international tribunals have relied heavily on general principles of criminal law to determine the elements of specific international crimes and to decide whether to recognize particular defences.

Customary international law, however, has played the most critical role in international criminal law.  To begin with, because of the principle of legality, the customary status of treaty-based international crimes has been disputed at every international tribunal since Nuremberg.  The jurisdiction ratione materiae of many international tribunals has also been defined in terms of custom – the most striking example being Article 3 of the ICTY Statute, which not only lists certain war crimes, but also gives the Tribunal jurisdiction over violations of “the laws or customs of war.”  And, of course, because of the minimalist nature of pre-Rome Statute treaties, judges have always had to fill substantive gaps in international criminal law – of which there have been many – with rules derived from custom.

Nor has the adoption of the Rome Statute signaled the end of customary international law’s importance.  Within the Rome Statute, Article 21 specifically permits recourse to custom when the Statute and Elements do not resolve a substantive question, while Article 31 permits the Court to recognize customary defences not specifically included in the Statute.  Outside of the Rome Statute, custom remains important for domestic courts in states that rely on it for their definitions of international crimes and for purposes of determining the contours of universal jurisdiction and aut dedere, aut judicare obligations.

In the context of international criminal law, however, the “correct” interpretation of the formal sources of international law – treaties, custom, general principles – has always been deeply contested.  In the Nuremberg trials, the IMT and NMT judges had to grapple with the difficult issue of whether, in light of the London Charter, crimes against humanity required a nexus to war crimes or crimes against peace.  In Cambodia, the Appeals Chamber rejected the ad hoc tribunals’ insistence that JCE III existed under customary international law.  And at the ICTY, three judges bitterly disagreed with each other concerning whether to recognize duress as a defence to the war crime of murder.

These examples of methodological conflict could be multiplied indefinitely.  The point is that, in a very real sense, the history of international criminal law is the history of decisions issued by international tribunals concerning the recognition (or non-recognition) of international crimes, modes of participation, and defences. The second question this book will address is thus analytic: do those decisions exhibit a coherent and defensible methodology concerning the internationalization process?

The book will argue that they do not.  On the contrary, it will argue that there has always been a fundamental tension in the methodology of international criminal law, one that has significantly undermined the field’s legitimacy.  International judges have consistently claimed to be strict positivists, deriving the substance of international criminal law from an inductive analysis of the formal sources of international law.  In practice, however, those judges have just as consistently ignored inductive analysis in favor of substantive rules deduced from the existence of allegedly fundamental principles such as “humanity” and “justice.”  Ironically, then, despite its recent vintage and claimed modernity, international criminal law actually owes much more to 16^th and 17^th century naturalism than to 20^th century positivism.

The purpose of this book, however, is not simply to expose the methodological deficiencies that have characterized judicial decision-making in international criminal law. It will also ask a third question, one that is deconstructive: could international criminal law have developed through a strictly positivist methodology, one that criminalized only those acts that had an adequate inductive foundation in the formal sources of international law?

There is reason to be skeptical.  Indeed, the book will argue that, for two reasons, the formal sources of international law have always radically underdetermined international criminal law, making it impossible to banish naturalism completely.  To begin with, unlike other areas of international law, the development of international criminal law has always been cabined by a fundamental principle: the principle of legality.  International criminal law is a subfield of public international law, but it is also – and perhaps foremost – a system of criminal law.  International criminal law has thus always depended upon the existence of a dense network of substantive rules defined with a clarity and precision that is largely unknown to (and unnecessary for) other areas of international law.  Could such rules ever have been inductively derived from the formal sources of international law?  It seems unlikely.

There is also a historical reason why the formal sources of international law have always underdetermined international criminal law.  To paraphrase Oliver Wendell Holmes, the life of international criminal law has not been logic; it has been experience.  The field has always been profoundly reactionary (in the literal, not political, sense of the word), developing as a response to periods of existential crisis, from the Holocaust to Srebrenica.  It is difficult to imagine how traditional theories of international law, particularly concerning the formation of custom, could ever have justified the Grotian leaps that an adequate legal response to those crises required.

Koskenniemi has argued that, in the wake of World War II, the new international legal order brought “exceptional situations within its compass… through an increasing deformalization, accompanied by a turn to ethics in the profession.”  This book will argue, by way of conclusion, that international criminal law provides a particularly striking example of Koskenniemi’s thesis.  By its very nature – demanding precision, yet responding to crisis – international criminal law resists traditional inductive theories of international law.  So it is true that international judges have consistently, if covertly, rejected positivism in favor of the kind of naturalism that dominated international law in the 16^th and 17^thcenturies.  But they might not have had any other choice.