Academic journal article
By Brincat, Shannon
Law & Society Review , Vol. 47, No. 1
Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World. By Kirsten J. Fisher. London: Routledge, 2011. 224 pp. $135.00 cloth.
This timely volume makes a significant contribution to exploring the normative dimensions of International Criminal Law (ICL), a subfield that has been underexplored and clearly outpaced by the quantity of works in (positive) ICL. Fisher makes a worthy entry into these debates, one free of legalistic jargon, and this book will serve as a foundational text in this subject-area for students in the years to come. The book makes a number of important contributions, including developing threshold criteria to define international crime and substantiating a framework of justice for international criminal prosecution and punishment based on retributive and expressive models.
Fisher aims to examine "how responsible agents, individuals and the collectives they comprise, ought to be held accountable to the world for the commission of atrocity." The volume evaluates international prosecution as the "right" response to a range of international crimes, such as crimes against humanity, war crimes and genocide (p. 3). More specifically, the book attempts to define the proper domain of ICL and its ambit regarding international crime. To this end, Fisher constructs a useful typology of international crimes and offers a normative engagement with the question of the need for international prosecution. Her argument is that ICL is normatively justified as a response to international crimes defined as those that assault basic human rights and which constitute a travesty of political organization.
For Fisher, to be identified as an international crime-and be considered devastating enough to require explicit condemnation by the international community-actions must meet a dual threshold test, firstly regarding the type of human rights that are violated, and secondly, in terms of the manner in which those rights are violated (Chapter 1). Severity refers to the type of human rights violations, divided according to the categorization of the infringement and level of urgency. Fisher judges that it is the infringement of basic rights that meets the required level of severity-those rights that secure the (pre)conditions of all others such as physical security, bodily integrity and sustenance. These "physical security human rights" are distinguished from liberty human rights that Fisher argues only give rise to human rights violations rather than constituting international crime per se. The second threshold-the associative threshold-refers to how a physical security human right is violated in such a way that involves political organization. This associative threshold is met where criminal act/s attack our fundamental need to politically organize (pp. 23-25). This unique criterion captures not only direct attacks on forms of political organization but also those instances where political organizations operate contrary to their primary function as a protector or promoter of the interests of its members. Fisher explores a number of acts against the severity and associative thresholds, including crimes against humanity, genocide, war crimes and crimes of aggression-all of which are shown to satisfy these two requirements and thereby justify condemnation and prosecution (Chapter 2). …