International Criminal Law: Taking Stock of a Busy Decade

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CONTENTS    I Introduction  II Developments     A Institution-Building     B Judicial and Jurisprudential Output     C Trendsetting and Epistemic Communities     D Political Management III Challenges     A (Re)nationalisation: From Technique to Context     B Diversity: From Law to Justice     C Scrutiny: From Faith to Science     D Truths: From Convenience to Discomfort  IV Conclusion 

I INTRODUCTION

Only I never saw another butterfly. That one was the last one. Butterflies don "t live here, In the ghetto. (1)

Pavel Friedmann wrote these words as a teenager in the Terezin ghetto near Prague. Along with 15 000 other Jewish children from Terezin, he later perished in a concentration camp. Pavel's poetry makes it clear that he knew he was being grievously wronged. But never would he have expected that his tormentors face legal sanction. Moral condemnation, certainly. But courts of morality are ephemeral and for the afterlife; they are not courts of law.

Pavel's suffering--along with that of so many others--did motivate the creation of courts of law to condemn Nazi barbarity. But these tribunals, principally sited at Nuremberg, were neither global nor permanent. Nor were they civilian. Nuremberg easily could have gone either way: as a watershed or a flash in the pan. History has proven kind to Nuremberg, in so far as it remembers the trials that were held there as a watershed. Over time, these trials have in fact become lionised--mostly because of the events of the past decade.

Cumulatively, these events have mainstreamed courts of law as the reflexive first option for holding accountable those who commit extraordinary international crimes such as genocide, crimes against humanity, or widespread war crimes. The atrocity trial glows in this iconic status. The architecture of justice involves courtrooms and jailhouses while the narrative of justice relates to individual culpability. (2) International criminal law ripples through the imaginative space of post-conflict justice and, thereby, aspires to fill the sullen void of impunity.

International criminal law dazzles by dint of its ambition. The claim that courtrooms can distil terribly complex episodes of collective atrocity is a bold one. So, too, is the claim that the jailhouse can punish the enemies of all humankind. Yet these ambitions have prompted action.

To commemorate the 10th anniversary of the Melbourne Journal of International Law, the Editors have asked for a reflection on major developments in international criminal law over the past decade and the challenges it faces for the future. I begin by setting out four such developments and then identify four challenges.

II DEVELOPMENTS

The four major developments that I identify are: institution-building; judicial and jurisprudential output; trendsetting and epistemic communities; and political management.

A Institution-Building

The past 10 years have witnessed tremendous institutional growth for international criminal law. Pre-existing institutions such as the ad hoc International Criminal Tribunal for the Former Yugoslavia ('ICTY', 1993) and International Criminal Tribunal for Rwanda ('ICTR', 1994) have consolidated their work. (3) Moreover, new institutions have popped up. The topography of international relations now includes the permanent International Criminal Court ('ICC', 2002; currently with 108 states parties); (4) hybrid tribunals such as the Special Court for Sierra Leone ('SCSL', 2002); (5) the Extraordinary Chambers in the Courts of Cambodia ('ECCC', 2003); (6) and the Special Tribunal for Lebanon ('STL', 2007). (7) International criminal law is everywhere.

B Judicial and Jurisprudential Output

The institutions of international criminal law are busy. The political economy of judicialised accountability is a going concern. Although trials continue and are forthcoming at each institution, the ICTY has convicted 70 offenders (including 15 cases that are under appeal); the ICTR has convicted 35 (including seven cases that are under appeal); and the SCSL has convicted eight (three convictions in the Revolutionary United Front case (8) are likely to be appealed). …