How Shall We Punish the Perpetrators? Human Rights, Alien Wrongs and the March of International Criminal Law

By Bhuta, Nehal | Melbourne University Law Review, April 2003 | Go to article overview

How Shall We Punish the Perpetrators? Human Rights, Alien Wrongs and the March of International Criminal Law


Bhuta, Nehal, Melbourne University Law Review


International Criminal Law by Kriangsak Kittichaisaree (Oxford: Oxford University Press, 2001) pages i-v, 1-482. Price A$99.95 (softcover). ISBN 0 19 876577 0.

The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain edited by Michael Ratner and Reed Brody (The Hague: Kluwer Law International, 2000) pages i-v, 1-505. Price A$278.95 (hardcover). ISBN 90 411 1404 1.

Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation edited by Craig Scott (Oxford: Hart Publishing, 2001) pages i-vii, 1-731. Price 69.00 [pounds sterling] (hardcover). ISBN 1 84113 060 5.

I

In an essay written in the infancy of the United Nations, international jurist Georg Schwarzenberger diagnosed international lawyers as suffering from a 'professional disease against which other members of the legal profession are remarkably immune.' (1) International lawyers, he complained, are afflicted by an over-zealous evangelism that confounds laudable values with existing realities, and he considered those jurists that asserted the existence of an 'international criminal law' to be among the most deluded. How can international criminal law exist, he queried, when 'international society still lacks any of the conditions on which the rise of criminal law depends'? (2) In Schwarzenberger's unhappy assessment, the most important but unfulfilled precondition for the existence of international criminal law stricto sensu was a neutral and consistent enforcement mechanism divorced from the corrupting influence of Cold War power politics. (3)

More than fifty years have passed since Schwarzenberger's sceptical criticism. Were he alive today, Schwarzenberger would note with chagrin that, despite his protestations, international lawyers' enthusiasm for the concept of international criminal law has only increased, with the term entitling numerous textbooks and articles. (4) But perhaps he would also begrudgingly accept that the prospects for the enforcement of international criminal law are better than at any time since 1945. The last decade has witnessed the first international criminal tribunals since Nuremberg, the establishment of the International Criminal Court, and an unusually large number of domestic prosecutions of international crimes under the principle of universal jurisdiction.

As a helpful recent review of developments in the Harvard Law Review noted, the literature on the theory, law and practice of prosecutions of international crimes is becoming unmanageably voluminous, reflecting the extent to which the topic continues to overexcite the imagination of international lawyers. (5) Not unlike 'human rights-ism', 'international justice' at times appears in danger of becoming a panacea for the problems of contemporary international order, allegedly fulfilling a cornucopia of objectives from historical verification to deterrence and to the restoration of the rule of law. Empirical evidence supporting the efficacy of prosecutions in achieving any of these objectives is far from persuasive, (6) raising the question of whether advocates of 'internationalised justice' risk undermining the credibility of prosecution processes by overstating their likely consequences. Among victims and their families from Rwanda to East Timor, disillusionment with internationalised justice processes--in the wake of unrealistically high expectations--is not difficult to find. (7) As David Rieff has acerbically observed, overblown rhetoric can give hope a bad name. (8)

II

But 'high-minded concepts' form the foundations of international criminal law, and perhaps for this reason it inspires the evangelism of which Schwarzenberger complained. Schwarzenberger himself noted that, in order for conduct to be classified as an 'international crime' or 'crime under international law' leading to individual criminal responsibility, it would include 'in all likelihood only acts of subjects or objects of international law which strike at the very roots of international society'. …

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