The Politics of International Criminal Law

Abstract

That law and politics are intertwined comes as a surprise only to the naïf. The nature and extent of their relationship, of course, is complicated and nuanced, especially at the international level. The Politics of International Criminal Law explores the “particularly charged” interaction between law and politics in the still young but rapidly growing field of international criminal law. It comprises eleven papers initially delivered at the 2016 Australian Criminal Law Workshop, several of which were published in the International Criminal Law Review in 2018. As the editors, Holly Cullen, adjunct professor of law at the University of Western Australia, Philipp Kastner, senior lecturer at the Law School of the University of Western Australia, and Sean Richmond, instructor at Carleton University, note in their introductory chapter, international criminal law (ICL) remains a “nascent legal regime [that] aims to regulate the longstanding power of states to define and manage war and crime” (p. 1). Because it “seeks to create a vertical regime on a horizontal plane, a system of legal coercion among actors accustomed to a more consensual regime,” ICL inescapably raises difficult issues about the relationship between law, power, and politics (id.).1 Accepting that “politics is ‘omnipresent’ in ICL” (p. 2), the volume seeks a deeper understanding of their interaction and its ultimate effect on the legitimacy of ICL as an emergent field. As a point of departure, the editors refer to Marti Koskenniemi’s observation that “when international law seeks to depoliticize international relations, it risks becoming either an apology for state interests and power inequalities, or an irrelevant moralistic utopia” (id.).2 This oscillation between law and politics provides the volume’s conceptual framework. The editors acknowledge, as they must, that the “law vs. politics” dichotomy is hardly an either/or proposition. While international criminal law and institutions are rooted in law, they have both political origins and political consequences far beyond their formal mandates. Moreover, the international criminal justice system can be (and on occasion has been) exploited for political purposes, so that it is at best difficult to maintain a clear separation between the admittedly political establishment of international criminal tribunals and their apolitical operation (p. 6). The editors concede that “there are both acceptable uses of law and unacceptable abuses of law to pursue political ends” (p. 16), although they understandably refrain from populating those categories. The volume’s eleven substantive chapters, divided into three parts, explore the balance (and tension) between law and politics in a variety of contexts. Part I addresses the politics of international criminal law in theory and practice, asking in particular why international criminal tribunals are created. In Chapter 1, entitled “Bridge Over Troubled Water,” Alexander Heinze, assistant professor of law at the University of Göttingen, offers “a semantic approach” for reconciling the numerous and sometimes contradictory purposes and goals of international criminal justice (broadly conceived). Noting that in many international situations the classical rationales for punishing criminal offenders (such as retribution, deterrence, and rehabilitation) may not in fact contribute to the broader andmore political objectives of restoring peace, creating a record of historical record, promoting reconciliation, and strengthening international humanitarian law, Heinz distinguishes between international criminal law, on the one hand, and international criminal procedure on the other. Recognizing that international