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International Criminal Law

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I. Starting Places

American Society of International Law's Research Guide on International Criminal Law provides information on the major electronic sources for researching international and transnational crime, with links to tribunals, organizations, and agencies. Chapter VI (A) is devoted to war crimes and human rights violations. The ASIL Electronic Information System for International Law (EISIL) database on International Criminal Law includes links to primary documents and recommended websites.

The Frederick K. Cox International Law Center War Crimes Research Portal contains links to international humanitarian law websites along with bibliographies and research guides.

International Criminal Law: A Selective Resource Guide provides a guide to basic research materials, in both print and electronic formats, and also includes a section specifically on crimes against humanity and human rights issues; unfortunately, it's a bit out-of-date.

NYU's Guide to Foreign and International Legal Databases: International Law: Specialized Sources: International Criminal Law tab :   provides links to international criminal law resources on the web.

The Oxford Companion to International Criminal Justice (Antonio Cassese, ed.) (Ref. K5301 .O94 2009) is a reference work that includes essays on major issues, definitions of terms and short biographies, and summaries of important cases.

International Criminal Law: War Crimes and Special Tribunals at New England School of Law includes links to war crimes materials on the Internet.

For a list of basic reference sources for international law, see the Goodson Law Library's International Law Research Guide .

II. United Nations Documents

You may be using a lot of UN documents in your research. Many documents, especially recent ones, are available on the UN website . You can find International Court of Justice documents on the ICJ website and in Westlaw (INT-ICJ database). The Goodson Law Library UN Research Guide provides in-depth advice on finding UN documents.

The UN Uphold International Law  w eb page includes links to UN tribunals (see below) and other UN agencies concerned with international law issues (such as the International Law Commission ).

III. Treaties

United Nations Treaty Collection includes both texts of treaties ( United Nations Treaty Series ) and status information, updated monthly. 

The American Society of International Law's Research Guide on International Criminal Law and LLRX's International Criminal Law: A Selective Resource Guide include links to other international criminal law treaties. For more advice on treaty research, see the Goodson Law Library Treaties Research Guide .

International Criminal Law Deskbook (John P. Grant & J. Craig Barker, eds.) (K5013 .I58 2006) is a collection of core international criminal law instruments with commentary and an outline of their legislative histories.

IV. International Tribunals

Amy Burchfield's research guide International Criminal Courts for the Former Yugoslavia, Rwanda and Sierra Leone: A Guide to Online and Print Resources and Harvard's International Criminal Courts and Tribunals provide useful research advice and helpful links..

International Criminal Court

The Coalition for the ICC Home Page on the International Criminal Court is a useful site maintained by an NGO. International Criminal Law Database & Commentary provides searchable texts of the case law from the International Criminal Court and a commentary to the Rome Statute. Eyes on the ICC (Periodicals) is an interdisciplinary journal that analyses issues related to the ICC. An Introduction to the International Criminal Court (5th ed.)(KZ7312 .S33 2017) is a good overview of the workings of the Court. The Annotated Digest of the International Criminal Court (KZ6310 .A48) provides subject access to ICC jurisprudence.

A list of international agreements regarding the surrender of U.S. citizens to the ICC (called Article 98 agreements, bilateral immunity agreements (BIAs), impunity agreements, or bilateral non-surrender agreements) is available through Georgetown's ICC Article 98 research guide .

Extraordinary Chambers in the Courts of Cambodia (ECCC)

This tribunal was created by the government of Cambodia and the U.N. to try serious crimes committed during the Khmer Rouge regime (1975-1979). Yale University's Cambodian Genocide Program is an excellent resource for information about the tribunal.

International Criminal Tribunal for Rwanda

Tribunal Pénal International Pour Le Rwanda: Recueil Des Ordonnances, Decisions et Arrêts = International Criminal Tribunal for Rwanda: Reports of Orders, Decisions and Judgements (KZ1201.A2 T75) reprints documents from 1995- in French and English. Annotated Leading Cases of International Criminal Tribunals (KZ6310 .A55 1999) includes the texts of selected decisions (including concurrences and dissents) from 1994- along with commentary. Basic Documents and Case Law  is a CD-ROM that includes some documents not available on the website (e.g. expert witness testimony) (KZ1201.A12 I574). ICTR documents (judgments, decisions, orders, and indictments) are also available on Westlaw (INT-ICTR database).

International Criminal Tribunal for the Former Yugoslavia

Judicial Reports = Recueils judiciaires (KZ1203 .I58) reports decisions from 1994-2000. The ICTY law review, Judicial Supplement , offers summaries of important decisions, orders and judgments from 1994-2004. The Appeals Chamber Case-Law Research Tool provides summaries of judgments by the ICTY Appeals Chamber since July 2004. Annotated Leading Cases of International Criminal Tribunals (KZ6310 .A55 1999) includes the texts of selected decisions (including concurrences and dissents) from 1993- along with commentary. ICTY documents (including judgments, decisions, orders, indictments, and transcripts) are also available in Westlaw (INT-ICTY-ALL database).

Special Court of Sierra Leone

Annotated Leading Cases of International Criminal Tribunals (KZ6310 .A55 1999) includes the texts of selected decisions (including concurrences and dissents) from 2003-present, along with commentary. Digest of Jurisprudence of the Special Court for Sierra Leone, 2003-2005 (KZ1208.S53 L38 2007) is a collection of selected abstracts of decisions and orders. 

The website of the Project on International Courts and Tribunals (PICT) has organized in one place news about the activities of international courts and tribunals, archives of case law, etc.

William A. Schabas, The UN International Criminal Tribunals : The Former Yugoslavia, Rwanda and Sierra Leone (KZ1203.A12 S34 2006) is a guide to the law of these courts.

V. Current Awareness

The ASIL Insights series of short articles on current international law topics includes several essays on international criminal law.

Hague Justice Portal provides access to the activities of the international courts and organizations located in The Hague, including the ICTY and the ICC.

International Enforcement Law Reporter (Periodicals and Lexis & Westlaw) is a monthly newsletter that includes coverage of issues such as international human rights and the law of war.

War Crimes Prosecution Watch is a bi-weekly e-newsletter that collects documents and articles concerning the investigation and prosecution of war crimes.

The websites of organizations such as Amnesty International and Human Rights Watch are also good sources of current information.

VI. Finding Books and Journal Articles

Useful recent works on international criminal law include:

• Roger O'Keefe, International Criminal Law (KZ700 .O34 2015).
• M. Cherif Bassiouni, Introduction to International Criminal Law (K700 .B37 2013).
• Roberto Bellelli, International Criminal Justice: Law and Practice from the Rome Statute to its Review (KZ6304 .I58 2010).
• Antonio Cassese, International Criminal Law , 2d ed. (K5000 .C37 2008)
• Robert Cryer, An Introduction to International Criminal Law and Procedure , 2d ed. (K5000 .I587 2010).
• Globalization and its Impact on the Future of Human Rights and International Criminal Law (M. Cherif Bassiouni, ed.) (KZ1266 .G56 2015).
• Alexander Zahar & Göran Sluiter, International Criminal Law: A Critical Introduction (K5165 .Z34 2008).

You can find additional recent topically relevant books  in the law library by searching the catalog by subject headings such as International Criminal Law, International Offenses , Crimes Against Humanity, Criminal Liability (International Law), Criminal Procedure (International Law), Criminal Jurisdiction, Genocide, Human Rights and War Crimes .

You can find law review   articles  by searching with the same subject headings (and by keyword, author, and title as well) in the index LegalTrac . This index is also available in Westlaw , as the LRI database (look under "Law Reviews, Bar Journals & Legal Periodicals" > "Periodical Indexes"). The Index to Legal Periodicals includes links to the full text of some articles.

Many useful databases for related disciplines, such as political science and international relations, are available from the Duke Libraries Research Databases page.

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The International Criminal Law of the Future

Washington University in St. Louis Legal Studies Research Paper No. 21-03-02

26 Pages Posted: 19 Mar 2021 Last revised: 23 Nov 2021

Leila N. Sadat

Washington University in St. Louis - School of Law; Yale Law School

Date Written: March 8, 2021

This essay draws upon past developments and current trends of International Criminal Law (ICL), to posit what the future might hold for the discipline. The essay first tracks the exponential expansion of ICL in the 20th and 21st centuries, detailing and critiquing developments from Nuremberg to the post-9/11 erosion of international norms in name of “fighting terrorism.” This narrative reveals a paradoxical element of ICL: “lesser” transnational crimes are met with robust interstate cooperation and at times troublingly little regard for defendant’s rights, whereas the most serious crimes of concern to the international community as a whole, the “core crimes” of genocide, crimes against humanity and serious war crimes, are often relatively weakly enforced and are typically tried in courts which are highly protective of the human rights of the accused. The essay then evaluates the track record of ICL over the past thirty years, noting that the results are mixed. While ICL has expanded during this period, particularly with the establishment of the International Criminal Court (ICC), this has generated a backlash from powerful global actors. The essay then traces five broad themes typifying modern ICL, both positive and negative for the field. It concludes with a prediction that ICL will become increasingly robust, although the exact form it will coalesce into remains unclear. Much hinges on the evolving stances of several Permanent Members of the Security Council, as well as national and regional efforts.

Keywords: international criminal law, international human rights, terrorism, crimes against humanity, international criminal court, core crimes, Nuremberg, transnational criminal law

Suggested Citation: Suggested Citation

Leila N. Sadat (Contact Author)

Washington university in st. louis - school of law ( email ).

Campus Box 1120 St. Louis, MO 63130 United States 314-935-6411 (Phone) 314-935-5356 (Fax)

Yale Law School ( email )

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The Theory and Practice of International Criminal Law

Essays in honor of m. cherif bassiouni.

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Preliminary Material

Chapter 1. a hard look at the soft theory of international criminal law, chapter 2. a modern perspective on international criminal law: accountability as a meta-right, chapter 3. depoliticizing individual criminal responsibility, chapter 4. universal jurisdiction: a pragmatic strategy in pursuit of a moralist’s vision, chapter 5. acting out against terrorism, torture, and other atrocious crimes: contemplating morality, law, and history, chapter 6. terrorizing the terrorists: an essay on the permissibility of torture, chapter 7. secret detentions, secret renditions, and forced disappearances during the bush administration’s "war" on terror, chapter 8. cherif bassiouni and the 780 commission: the gateway to the era of accountability, chapter 9. sexual violence as genocide: the important role played by the bassiouni commission in the recent development of international criminal law, chapter 10. the international criminal court and the transformation of international law, chapter 11. the international criminal court and the congo: from theory to reality, chapter 12. crimes against humanity: the state plan or policy element, chapter 13. "the only thing left is justice" cherif bassiouni, saddam hussein, and the quest for impartiality in international criminal law, chapter 14. using international human rights law to better protect victims of trafficking: the prohibitions on slavery, servitude, forced labor, and debt bondage, chapter 15. cherif bassiouni, the icrc, and international humanitarian law, table of contents, share link with colleague or librarian, product details.

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The legal regime of the International Criminal Court : essays in honour of Professor Igor Blishchenko : in memoriam Professor Igor Pavlovich Blishchenko (1930-2000)

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• Early efforts to establish an international criminal court / Jackson Maogoto
• The Tokyo Trial revisited / Hisakazu Fujita
• The work of national military tribunals under control council law 10 / Jackson Maogoto
• The experience of the ad hoc tribunals for the former Yugoslavia and Rwanda / Jackson Maogoto
• Customary law or "judge-made" law : judicial creativity at the UN criminal tribunals / William Schabas
• Bombardment : from "Brussels 1874" to "Sarajevo 2003" / Frits Kalshoven
• The relationship between complicity modes of liability and specific intent crimes in the law and practice of the ICTY / José Doria
• Plea bargaining : the uninvited guest at the International Criminal Tribunal for the former Yugoslavia / Mark Harmon
• Provisional release in the law of the International Criminal Tribunal for the former Yugoslavia / Fergal Gaynor
• Undue delay and the ICTY's experience of status conferences : a judge's personal annotations / Almiro Rodrigues
• The work of the special court for Sierra Leone through its jurisprudence / José Doria
• From East Timor to Timor-Leste : a demonstration of the limits of international law in the pursuit of justice / Richard Burchill
• Bosnia's war crimes chamber and the challenges of an opening and closure / Avril McDonald
• The judges of the International Criminal Court and the organization of their work / Hirad Abtahi
• The International Criminal Court's office of the prosecutor : navigating between independence and accountability? / Jan Wouters, Sten Verhoeven, and Bruno Demeyere
• The support work of the court's registry / Anna Lachowska
• Jus Cogens, obligations Erga Omnes and international criminal responsibility / Władysław Czapliński
• Jurisdiction ratione personae or the personal reach of the court's jurisdiction / Christopher L. Blakesley
• The ICC and the security council : an uncomfortable relationship / Nigel White and Robert Cryer
• Conduct of hostilities : war crimes / Lindsay Moir
• Crimes involving disproportionate means and methods of warfare under the statute of the International Criminal Court / Judith Gardam
• International legal protections for persons hors de combat / Sergei A. Egorov
• Child recruitment as a crime under the Rome Statute of the International Criminal Court / Matthew Happold
• Particular issues regarding war crimes in internal armed conflicts / Lindsay Moir
• Violations of common Article 3 of the Geneva Conventions / Lindsay Moir
• Displacement of civilians as a war crime other than a violation of common Article 3 in internal armed conflicts / Lindsay Moir
• Whether crimes against humanity are backdoor war crimes / José Doria
• The crime of aggression and the International Criminal Court / Roger S. Clark
• The doctrine of command responsibility / Charles Garraway
• The transposition of military commander's discretion onto international criminal responsibility for military commanders : an increasing legal-political dilemma within international criminal justice / Geert-Jan Alexander Knoops
• Official capacity and immunity of an accused before the International Criminal Court / Eric David
• Self-defence and state of necessity in the statute of the ICC / Eric David
• The diverging position of criminal law defences before the ICTY and the ICC : contemporary developments / Geert-Jan Alexander Knoops
• The rules of procedure and evidence and the regulations of the court / Silvia Fernández de Gurmendi and Håkan Friman
• Charging in the ICC and relevant jurisprudence of the ad hoc tribunals / Vladimir Tochilovsky
• Prosecution disclosure obligations in the ICC and relevant jurisprudence of the ad hoc tribunals / Vladimir Tochilovsky
• The conduct of trials / José D'Aoust
• Victims' rights and interests in the International Criminal Court / Theo van Boven
• Ensuring effective participation and adequate redress for victims : challenges ahead for the ICC / Ilaria Bottigliero
• Uniform justice and the death penalty / Eric Myjer
• Standards of appeals and standards of revision / José Doria
• Cooperation with the court on matters of arrest and surrender of indicted fugitives : lessons from the ad hoc tribunals and national jurisdictions / Daniel Nsereko
• The International Criminal Court and the International Court of Justice : some points of contact / Shabtai Rosenne
• International humanitarian law and its implementation by the court / Robert Kolb
• The International Criminal Court : reviewing the case (an American point of view) / Ruth Wedgwood
• The dynamic but complex relationship between international penal law and international humanitarian law / Yves Sandoz
• Ten principles for reconciling truth commissions and criminal prosecutions / Lyal S. Sunga
• The ICC statute and the ratification saga in the states of the commonwealth of independent states / Aslan Abashidze and Elena Trikoz
• The changing relationship between international criminal law, human rights law, and humanitarian law / Hans-Peter Gasser.

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International criminal law

General disclaimer.

“How does law protect in war?” promotes practice-based IHL teaching. Its contents are developed in partnership with academia and do not necessarily reflect the views of the ICRC. By continuing on this website, you agree to its terms and conditions .

This is the branch of international law that is designed to hold individuals who are responsible for particularly serious violations of international law to account before the law. The idea that individuals, and not only States, could be found responsible for such violations started to gain ground after World War II with the establishment of the Nuremberg and Tokyo tribunals, which were set up to prosecute persons responsible for atrocious crimes.

This branch of public international law deals with international crimes: i.e., war crimes , crimes against humanity , genocide and potentially, aggression. One of the legal consequences of framing an act as an international crime is that states must prosecute and punish for its commission, including through the exercise of universal jurisdiction , which allows - or even obliges - any State to try alleged perpetrators present on a territory under its jurisdiction, even in the absence of any link between the accused and the State exercising jurisdiction.

The Geneva Conventions and Additional Protocol I establish that certain violations of IHL are to be considered “ grave breaches ”, and they must be prosecuted by High Contracting Parties on the basis of the principle of universal jurisdiction. Other serious violations of IHL are established by customary international law and by international criminal law treaties. Such serious violations of IHL, together with grave breaches, constitute war crimes.

IHL also contains certain rules which belong materially to international criminal law (e.g Arts 86(2) and 87 of AP I on command responsibility and Art. 87 of AP I on mutual assistance in criminal matters).

The jurisprudence of international criminal tribunals has greatly contributed to clarifying many IHL issues. For instance, the Tadic decision handed down by the International Criminal Tribunal for the former Yugoslavia consolidated the criteria based upon which a situation may be classified as a non-international armed conflict .

The current system of international criminal law is implemented through national systems (military tribunals and ordinary courts) as well as international  ad hoc  tribunals, internationalized or mixed tribunals and the International Criminal Court .

See  Individual criminal responsibility ; Genocide ; War crimes ; Crimes against humanity ; International Criminal Court ; International Criminal Tribunal for the former Yugoslavia (ICTY) ; International Criminal Tribunal for Rwanda (ICTR) ;

 OUTLINE

• Mali, Accountability for the Destruction of Cultural Heritage
• El Salvador, Supreme Court Judgment on the Unconstitutionality of the Amnesty Law
• ICC, Confirmation of Charges against LRA Leader
• Spain, Universal Jurisdiction over Grave Breaches of the Geneva Conventions
• International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo
• Belgium, Prosecution of Terrorist Crimes in the context of Armed Conflict
• South Sudan, Activities of Oil Companies
• Afghanistan and Colombia, Conflict-Related Sexual Violence and Violence Against LGBT+ and Gender-Diverse Persons  
• Colombia, Special Jurisdiction for Peace, Extrajudicial Executions in Casanare  
• United Kingdom, Unlawful Killings in Afghanistan
• Switzerland, Swiss Federal Criminal Court Finds Liberian Commander Guilty of War Crimes
• Colombia, Special Jurisdiction for Peace, Crimes against the Environment in Cauca

Legal sources

Grave Breaches

GC I, Art. 50  (see ICRC updated Commentary ) GC II, Art. 52  (see ICRC updated Commentary ) GC III, Art. 130 GC IV, Art. 147 AP I, Art. 85

Fundamental Guarantees

AP I, art 75 §4 c)

Mutual assistance in criminal matters

AP I, art 88

Penal prosecutions of criminal offences related to the armed conflict 

AP II, art 6

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The theory and practice of international criminal law: essays in honor of M. Cherif Bassiouni

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Critiques of International Criminal Law Revisited in the Light of the Rome Statute

What more can we do.

As 2021 marked the 75th anniversary of the first international criminal trial in Nuremberg , this post will reflect on the current state of international criminal law (ICL). The conventional wisdom in this respect seems to be that ICL is a virtuous project in principle, but that its institutions – particularly the International Criminal Court (ICC) – are in bitter need of reform. The present essay will question this widespread position. Focusing on the critiques that have historically been mounted against international criminal prosecutions, it will be argued that the setup of the ICC has done its best to address these historical pathologies. To the degree that these problems still persist today, they seem to inhere in the concept of ICL and cannot be remedied through further reform at the ICC.

Positivism, Reconciliation and Retributive Justice

A first line of criticism that has accompanied ICL through the different stages of its development is the positivist accusation that has repeatedly violated the principle of legality. By punishing acts which, at the time of their commission, had not been criminalised, ICL has been criticised as ex post facto law. Such was the key reservation voiced by the US delegation to the post-WWI Commission on Responsibilities , as well as a central theme in Justice Pal’s dissent at the Tokyo War Crimes trial. This is perhaps the critique that is most directly addressed in the Rome Statute , as Article 22 lays down the basic principle of nullum crimen sine lege . Beyond this explicit guarantee, compliance with the principle of legality is further safeguarded by the extensive definitions of the core crimes provided in Articles 6-8 bis and 70.

A second perennial objection to ICL is that its retributive legalism may prove counterproductive to a country’s transitional justice efforts. Post-Apartheid South Africa and Spain’s gradual democratisation after the Franco regime are commonly cited as examples in which a focus on reconciliation rather than on criminal trials proved effective. Here too, it is submitted that the Rome Statute provides for mechanisms to accommodate this concern. As such, where there are overriding political considerations that make criminal proceeding seem inopportune in a given case, the Security Council has the option of halting the ensuing investigations or prosecutions (Article 16). Similarly, and more explicitly, Articles 53(1)(c) and (2)(c) provide that the Prosecutor may refrain from opening investigations on the basis that they would not “serve the interests of justice”.

Complementarity and Collective Responsibility, Then and Now

A third potentially problematic theme that is implicit in the development of ICL is the dialectic between local and international prosecutions . Sceptics have contended that the international legal system does not provide suitable conditions for delivering criminal justice and that this should instead be the task of national courts. Indeed, whether criminal justice is best administered through national or international proceedings seems to have been an unresolved issue throughout the history of ICL: While the international trials of German officials contemplated in the Treaty of Versailles never became a reality, such proceedings were later conducted at the national level in the form of the Leipzig War Crimes Trials. After World War II, the trials before the International Military Tribunal at Nuremberg were later succeeded by national proceedings at US military courts in Allied-occupied Germany as well as at Israeli ( Eichmann ) and French ( Barbie ) courts. And in the case of criminal prosecutions following the Rwandan genocide of 1994, the national Gacaca court system operated in parallel with the International Criminal Tribunal for Rwanda created by the Security Council (cf. Article 8 of the ICTR Statute).

Again, the setup of the ICC aims to embody a compromise between proceedings at the national and the international level. Through the principle of complementarity as enshrined in Articles 1 and 17 of the Rome Statute, national criminal justice proceedings are in principle prioritised over ICC action; The Hague only steps in where national systems are unwilling or unable to engage in genuine prosecutions (see e.g. Prosecutor v. Katanga ). This can be interpreted as an acknowledgement that international trials have their flaws, but that they should nonetheless play a role where the natural alternative – criminal proceedings at the national level – is unavailable.

Fourthly, a tension between collective and individual responsibility has been another companion of international criminal justice. As a problematisation of ICL, this may take varying forms. One of them is the critique that the individualisation of blame implicit in criminal proceedings is particularly inadequate in ICL. Phenomena such as war or genocide, so the reasoning goes, are the result of complex chains of events and cannot be made sense of in terms of the individual responsibility of one or few main perpetrators (on war, see the Report of the Commission on Responsibilities at p. 118f.). Another manifestation of the collective-individual ambiguity is ICL’s relationship with the more traditional notion of state responsibility. At Versailles, both approaches were discernible, as the scheme for prosecuting the Kaiser accompanied the broader plans for sanctioning the German state as such for the initiation of World War I. Relatedly, in 1945, while individual criminal responsibility for acts of aggression was established at the International Military Tribunal (IMT), the interstate prohibition on the use of force was laid down in Article 2(4) of the UN Charter . And more recently, while governed by Saddam Hussein, the Iraqi state was the target of extensive UN sanctions (SC Resolutions 661 and 687 ); on the other hand, after the fall of Saddam’s regime, the Iraqi Special Tribunal prosecuted individuals within the former ruling party on charges of genocide, crimes against humanity and war crimes.

Once again, it is submitted that the ICC Statute takes account of these issues. While the ICC is in principle only concerned with individual criminal responsibility (Article 25), collective notions can still play a role in establishing this responsibility. This becomes apparent, first, in the Rome Statute’s conception of crimes against humanity: According to Article 7(1), a crime against humanity is definitionally required to occur as part of a “widespread or systematic attack”. Moreover, Article 28 codifies the concept of commander responsibility, which can also be seen as an acknowledgement that the responsibility for core crimes cannot be too narrowly placed with the perpetrators but that the persons surrounding them may equally need to be held accountable (see Prosecutor v. Bemba ) . Finally, Article 8 bis makes the existence of a crime of aggression contingent on a manifest violation of the UN Charter prohibition on the use of force between states. This is to be viewed as an attempt to harmonise ICL and the interstate ius ad bellum regime and to thus bring together the notions of individual (i.e. criminal) and collective (i.e. state) responsibility.

Victor’s Justice and the Africa Question

A final reservation about international criminal justice can be subsumed under the idea of selectivity . Historically, this mostly came in the form of accusations of victor’s justice. For instance, the tribunals at Nuremberg and Tokyo were concerned only with crimes committed by the Axis. Perhaps even more tellingly, when the French State tried Klaus Barbie on charges of crimes against humanity, these were defined as acts carried out in the name of a “policy of ideological hegemony” – suggesting that France wanted to prosecute only its former World War II enemies and deliberately excluded its own actions from the scope of this crime. Modern criticisms which see the ICC’s prosecutorial focus on Africa as evidence of a racial bias within ICL can be considered the contemporary version of this selectivity reproach.

Nevertheless, unlike prior international criminal tribunals – including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – the ICC’s jurisdiction is not confined to specific states. Subject to the Article 13 “trigger mechanisms” by which the Court can gain jurisdiction over a case, its competence is defined materially through the four core crimes (genocide, crimes against humanity, war crimes and aggression) enumerated in Article 5. Put differently, individuals from all states – including those that were themselves instrumental in the establishment of the ICC – may in principle be prosecuted by the ICC if they commit a core crime and their state has ratified the Rome Statute. Once more, it seems that historical concerns are responded to by the structure of modern ICL, in this instance through the adoption of a formally neutral catalogue of criminal offences. Beyond this, it is not obvious what could be changed about the ICC’s institutional architecture so as to make ICL more bias-free. Of course, inequities like the disproportionate targeting of African individuals persist. On the other hand, and as has been frequently noted , the majority of these ICC investigations are based on self-referrals by the relevant African states. In this sense, such imbalances may partially be an expression of the fact that the ICC operates in a world of pre-existing inequities between states, rather than a symptom of systemic selectivity within modern ICL itself.

Conclusion: The Tougher Question to Ask

The previous points about selectivity reflect this essay’s overall conclusion. The author has tried to show how various ambiguities and problems were indeed characteristic of international criminal justice at different stages of its genesis, but also how these issues were picked up and addressed in the Rome Statute. Naturally, none of this is to suggest that ICL today works flawlessly. The point here is a more nuanced but simultaneously more radical one: Perhaps the ICC is as good as international criminal justice can get. Modern ICL may well have stripped itself of its pathological tendencies to the greatest degree possible, such that it is unclear what further reforms could be adopted today to remedy its historical defects. Faced with the contemporary critiques of ICL, the question we may need to answer is therefore not what reforms to adopt. Much more fundamentally, we may instead need to decide whether, if further structural improvement of ICL is impossible, the system is worth preserving as it is or whether the project has become irredeemable.

Marco Vöhringer is an LL.M. candidate at the London School of Economics (LSE). He holds a B.A. in International Relations from TU Dresden.

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