It is the same in cases such as Sierra Leone, where rebel forces were fighting a government that is weak and does not control much territory.29 The state (and its powers) have a protective role that cannot be ignored here, at the very least unless and until the UN or another body chooses to take it over.30. Of the five, only Ward’s is generally critical of international criminal law, but the fact that this issue is of interest at all in a more general theoretical work, alongside the fact that these books represent only part of the ever-increasing literature on international criminal law, shows that the topic is no longer the preserve of a small number of scholars publishing for a small audience. 10 (1927). K. Jaspers, The Question of German Guilt (2000). Transformation, at 261. Four of the five works under consideration have international criminal law as their primary focus. Ward underestimates these problems. It is certainly less dynamic than that of Leila Sadat, who takes the view in her The International Criminal Court and the Transformation of International Law13 that, [t]he negotiation of the Rome Treaty has worked a quiet, albeit uneasy, revolution that has the potential to profoundly transform the landscape of international law. Humanity deserves no less. I recommend it to scholars and lecturers who wish to be updated to the contemporary development on sovereign/state immunity. Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72, 31 May 2004, at paras 17–51. A. Finkielkraut, Remembering in Vain: The Klaus Barbie Trial and Crimes Against Humanity (1992). As Timothy McCormack states in his well-researched and thoughtful chapter in the same volume, inconsistencies in international criminal law enforcement are ‘most readily explicable on the basis of an “us” and “them” mentality’ (at 108), where states advocate the prosecution of ‘others’, whilst having ‘an aversion to accept the ugliness of what their own troops have done against the enemy they have come to dehumanise’.64, The respective works here are all moderately optimistic, although none could be considered naïve or utopian. Désolé, un problème s'est produit lors de l'enregistrement de vos préférences en matière de cookies. Against Ward, it can be argued that the individualization of guilt may help rebuild trust among communities. How else can we explain the serial horrors of the countless holocausts of the last century? If regular enforcement – the rule of law – is to become even a clearly emergent reality, then supporters of universal jurisdiction will have to propose credible means of addressing the complex decisions and (sometimes political) value-judgements faced by those operating in real-world situations. Others, such as Reinhold Niebuhr, would retort that people need to have their impulses controlled through strict rules, which international criminal law provides. Retrouvez State Sovereignty and International Criminal Law et des millions de livres en stock sur Amazon.fr. Antonio Cassese, as noted by Bruce Broomhall in his extremely useful, if rather short, book, has made it clear that in his view ‘either one supports the rule of law, or one supports state sovereignty. They are the principal enforcers of criminal responsibility for international crimes, as reaffirmed by the complementarity principle on which the International Criminal Court (ICC) is based. Thanks to Neil Boister for his comments on an earlier draft. However, it is unfortunate that although he seems prepared to concede that states are beginning to take such a view (see, e.g., at 106), Broomhall does not engage in any extended way with the most relevant international relations scholarship, particularly in the area of constructivism.71 To be fair to Broomhall, IR theorists, including constructivists, have not dealt with international criminal law in any detail. Wilson, for example, claims precisely the opposite, supra note 86, at chs 6–7. However, he also noted ‘I am against reconciliation as seen from the Hague perspective. Broomhall is not the only one to note the interplay of substantive norms and state interests at Rome. What ‘his comments do, however, is give the impression that Broomhall’s vision of sovereignty is more static than that of some of the other books’. See International Justice, pp. Crawford, in his contribution to Nuremberg, is more circumspect, describing the Rome Statute (at 152) as a limited code of international criminal law. This is the work of a serious and talented scholar, who also has an excellent feel for the subject. Still, these instruments are also open to critique about their lack of transparency and equal application (International Justice, at 57). ), The Politics of International Law (2004). The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, From Nuremberg to the Hague: The Future of International Criminal Justice, Justice. 1., at 25. Skip to main content Accessibility help We use cookies to distinguish you from other users and to provide you with a better experience on our websites. State Sovereignty and International Criminal Law FICHL Publication Series No. Two of the books are collections of essays edited by Philippe Sands, Professor at University College London. Although international criminal law does involve some challenges to sovereignty, it also See the UN Secretary-General’s Report, In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. Others have gone further, and claimed that the TRC was a flawed institution designed to serve the interests of a new political elite rather than the victims.86 Either way, it is by no means clear that the TRC has led to reconciliation in South Africa, or contributed to the social justice it was intended to foster. Search for other works by this author on: International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. The exercise of legislative and adjudicative jurisdiction is an important part of state sovereignty. For full access to this pdf, sign in to an existing account, or purchase an annual subscription. International criminal law has areas of blindness. Violations of international criminal law were frequent, for example in Somalia, where there was no government that could control the various factions. The same can be said about Broomhall’s International Justice. I was wronged and almost my entire family was killed. The Court's opposition has illustrated problems of state sovereignty, which in turn exemplifies how the International Criminal Court embodies a shifting notion of state sovereignty. The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. International law is a system of freedom- countries can act in any manner which is not expressly prohibited. See, e.g., A. P. Rubin, Ethics and Authority in International Law (1997). states are unwilling to put the decision to use force outside of their control, in particular in support of international criminal law. For example, as Jaspers said, What happened in Nuremberg ... is a feeble, ambiguous harbinger of a new world order, the need of which mankind is beginning to feel. Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’, 2 Journal of International Criminal Justice (2004) 810, at 825. International Justice, at 6. Later though, through the existence of the ICC as an embodiment of the ideals of international criminal law, and state interactions with it, states would internalize the ideals, and simply prosecute international crimes on the basis that they ought to be prosecuted per se, without regard to the concern that the ICC might otherwise do it. Admittedly, the rights of the ICC to do so are hedged with conditions protecting sovereignty, most notably, complementarity. I give it 5 star without reservation. Constructivism would place emphasis on the fact that a number of states have begun to internalize those ideas and see their own identity as involving a commitment to the prosecution of international crimes. International criminal lawyers often see sovereignty as the enemy of international criminal law, though frequently failing to discuss in any depth the nature and malleability of sovereignty. Indeed, there may be empirical reasons for the argument that resort to criminal law is not a first, but a last resort, and that having tried trusting humanity, we have come to seek to limit its destructive urges. Indeed, in at least one instance, substantive international criminal law supports state sovereignty. Or, as Edward P. Thompson said, ‘the law may be rhetoric ... it need not be empty rhetoric’.72 International criminal law is perhaps particularly susceptible to such an analysis, given the suffusion of its own rhetoric with ideals of universality and crimes against humanity as a whole.73 A constructivist account would build upon this to use the power of ideas and identity to explain how this led to the ICC. The two are not . I did nothing wrong, Reconciliation means we have to meet halfway, but that’s offensive. The difficulties here can be traced to Bodin’s statement that sovereigns who make the laws cannot be bound by the laws they make (majestas est summa in cives ac subditos legibusque … To begin with issues of theory, as a number of the works here accept, there are two views of sovereignty. Indeed the books reviewed here can be seen as belonging to the second wave of post-Cold War international criminal law scholarship.1 They also represent a more highly developed, worldly-wise approach to international criminal law than some of the earlier literature in the field.2. See, e.g., Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN Doc. At Rome, for example, ‘this would intrude on our sovereignty’ was often used as a euphemism for ‘we don’t like this’ per se. Read reviews from world’s largest community for readers. International law, including the principle of non-intervention in another state’s internal affairs and the principle of sovereignty, applies to these cy ber operations. Ward’s final argument against the over-use of international criminal law perhaps has more purchase: [t]he forms of law relieve us of the deeper ethical problems, of shared responsibility for the fate of humanity. 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