From Nuremberg to the Hague: The Future of International Criminal Justice.

• Author: Drumbl, Mark A.
• Position: Brief Article - Book Review

FROM NUREMBERG TO THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMINAL JUSTICE. Edited by Philippe Sands. Cambridge: Cambridge University Press. 2003. Pp. xiii, 192. Cloth, $60; paper, $21.99.

INTRODUCTION

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. (1) The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays--concise and in places informal--carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic rigor. Consequently, the overall collection is accessible without being breezy. It provides an insightful contribution to a burgeoning field and busy debate.

Sands has assembled an illustrious group of contributors. Two of the invited essays are authored by scholarly giants of international law. James Crawford (Whewell Professor of International Law, University of Cambridge, and Member of the United Nations (UN) International Law Commission from 1992 to 2001) sets out the negotiation process of the International Criminal Court, the permanent institution that entered into force in 2002 to adjudicate alleged perpetrators of genocide, war crimes, and crimes against humanity. Andrew Clapham (from the Graduate Institute of International Studies in Geneva) thoughtfully examines how international criminal law has responded to the complexity of the conduct it proscribes and the reality of widespread public complicity in that conduct. In addition to editing the volume, Sands also contributes an essay. He carefully explores the interplay among national and international courts in punishing perpetrators of international crimes. The opening essay in the volume is by a historian, Richard Overy, who traces extant international criminal law back to its genesis at the Nuremberg trials. Cherie Booth, a well-known human rights litigator, authors the final essay in the volume. She discusses how international criminal justice could improve its response to gender violence. The involvement in the project of Booth--and certainly also Crawford and Sands -diversifies the volume's content insofar as these authors have considerable litigation experience and, therefore, represent the voices of those who argue and operationalize international law in a variety of courts.

In terms of readership, this edited volume obviously will interest theoreticians and practitioners in international, comparative, and criminal law. It will also intrigue scholars of jurisprudence. From Nuremberg to The Hague, however, also resonates outside of the legal academy. This is in part due to the contributors' ability to present the law in a lively and engaging manner. The volume generates even more dynamism owing to its focus, rather uncommon within the literature, on an interdisciplinary and victim-centered analysis. One of the premises of this book is that, whereas "[l]awyers are particularly interested in the minutiae of technical questions[,] ... what matters to most people is a bigger question: is the emerging system of international criminal justice fulfilling its objectives?" (p. 106). This premise augments the currency of From Nuremberg to The Hague among those who apply sociological, anthropological, psychological, and social science methodologies to come to grips with mass atrocity and the role of justice in transcending systemic violence.

I intend in this Review to examine the contributions and limitations of From Nuremberg to The Hague and, in so doing, engage in a sustained process of critique and reflection regarding the internationalization of criminal process and its application to individual perpetrators of collective violence. To varying degrees, each contributor to this volume supports this process and its operationalization through international courts and tribunals, many of which have been created over the past decade. (2)

In this regard, the contributors write within the dominant metanarrative of international criminal law. (3) This paradigm, which has gained currency since the Nuremberg trials (pp. 22, 28), casts mass violence as something blatantly transgressive of universal norms. Transgressions of this magnitude constitute extraordinary acts of criminality that necessitate thorough investigation, effective prosecution, and retributive punishment. What is more, this heuristic posits the need to stigmatize this behavior through special categories of criminality that recognize the particularly opprobrious nature of the crimes at hand. This, in turn, gives rise to proscriptions concerning genocide, crimes against humanity, war crimes, and--inchoately--to large-scale acts of terrorism. This heuristic takes seriously Hannah Arendt's notion that the criminality of mass atrocity is of concern not just to individual victims or roiled societies but also to humanity as a whole and, consequently, that international institutions largely staffed by individuals personally disconnected from the conflict constitute appropriate conduits to prosecute and punish offenders and, thereby, effect justice. (4) As Sands notes, there has been a proliferation of such institutions in recent years, reflecting the reality that "the international community has determined that the gravest crimes are properly the subject of criminal justice systems" (p. 71). These institutions appropriate the legitimacy of punishment as practiced by states and reapply it in a supra-statal context to punish the "enem[ies] of all humankind." (5)

Assuredly, it is comfortable--and comforting--for the contributors to From Nuremberg to The Hague to write within this metanarrative. This comfort, though, also cabins the full creative output of the volume. What I wish to accomplish in this Review Essay is to build upon the insights and wisdom of the contributors to suggest ways--some of which at first blush may seem eccentric or unorthodox--through which international criminal justice might become more effective in making the world a safer place.

1. NUREMBERG AND HAGIOGRAPHY

   As its title foreshadows, From Nuremberg to The Hague specifically examines the evolution of international criminal justice from the Second World War to the contemporary wave of legal institution-building that animates international relations. The preface equates the output of this current wave to an "emergence of a new system of 'international criminal law'" (p. x). Sands astutely ascribes the termination of the Second World War as coincident with the beginnings of the mainstreaming of international criminal law, although it is unclear whether this has reached the level of creating a new legal "system." Instead, perhaps, international criminal law may be thought of as a patchwork of loosely connected national, regional, international, and hybrid judicial proceedings. That said, the Preface's reference to a new system of international criminal law certainly is given momentum by the creation in 2002 of the International Criminal Court (ICC) which, assuredly, may provide precisely the sort of permanent enforcement system Sands envisions. (6)

   Prior to the Second World War, international criminal law evidenced only rare--and fleeting--life signs. These included suggestions of international or transnational criminal process in the wake of the Turkish campaigns against the Armenians in 1915 and the tactics of the German Kaiser in his effort to secure a German victory over the Allies in the First World War. (7) These suggestions never gathered much momentum. Consequently, it is fair to say that prior to World War II "individuals had no standing at all in international law and, apart from insignificant exceptions, humanitarian law had never been enforced." (8)

   To be sure, Nuremberg was somewhat of a watershed. Although formally conducted within an institution called the International Military Tribunal, the Nuremberg proceedings essentially were criminal proceedings, not courts-martial. (9) These proceedings were catalytic in "building the foundation for contemporary international law on war crimes" (p. 28). Nuremberg also played a pivotal role in discrediting the ex post facto defense: namely, that it is improper to prosecute someone for an act that was legal at the time and place where the crime was committed (p. 21).

   That said, it is important not to engage in a hagiographic treatment of the Nuremberg proceedings. Richard Overy's essay, in which he draws from his academic training as a historian, is to be credited for its cautiousness. Overy does not venerate the trials, but instead examines them with great curiosity and great care. He goes out of his way to identify the mindset of the architects of the Nuremberg trials at the time of the establishment of the Tribunal and at the time of the prosecution of various cases. This is refreshing as it counters the seductive tendency to sprinkle the past with some revisionism to make the past conform to contemporary understandings of how it ought to look.

   Although the Nuremberg proceedings were animated by rhetoric that evinced legalist zeal, in the end only twenty-two defendants were indicted (p. 12). Many suspects avoided prosecution. The involvement of non-German nationals in the atrocities was deliberately overlooked. Moreover, the initial focus of the proceedings was not on the atrocities perpetrated against European Jewry, but on the crime of waging an aggressive war. In fact, Nuremberg began not as an affirmation of the law of atrocity but rather as a condemnation of Nazi warmongering and militarism. (10) Subsequent apprehensions by the Soviet Union, however, regarding the criminalization of waging an aggressive war--let...