International Criminal Law and State Accountability

The Rise of International Criminal Law and the Effacement of State Accountability

• International criminal law celebrates the punishment of individuals for international atrocity crimes, but ignores the role of States in these crimes.
• The rise of international criminal law has come at the expense of holding States accountable for their role in mass violence.

The Dominant Normative Framework: Transitional Justice

• Transitional justice has emerged as the dominant normative framework for responding to mass violence.
• Liberalism strongly influences transitional justice, which prioritizes individual criminal accountability over State accountability.
• Transitional justice rejects punishing States for atrocities as illiberal and illegitimate.
• The framework largely ignores legal accountability for States, allowing them to escape moral and legal impunity.

The Concept of State Accountability

• State accountability refers to the legal and moral culpability of States for their role in mass violence.
• The concept of State accountability is often overlooked in favor of individual criminal accountability.
• The absence of State accountability perpetuates impunity and allows States to avoid accountability for their crimes.

Historical Precedent: Post-WWII Accountability

• The Allies imposed extensive measures of accountability on Germany and Japan after WWII, including democratization, disarmament, and reparations.
• These measures aimed to disrupt and refashion the structural foundations of State policies that produced the war.
• The Allies' approach to accountability encompassed both individual and State accountability, conveying normative culpability and remedial consequences.

The Importance of State Accountability

• Naming States culpable for their role in mass violence conveys moral condemnation and repudiation of offending State policies.
• State accountability lays a legal foundation for remedies against the State, addressing the root causes of State criminality.
• Without State accountability, States enjoy impunity, and the root causes of mass violence remain unaddressed.

The Roadblock to State Accountability

• One of the primary obstacles to punishing States for their role in atrocities is the lack of positive law establishing State crimes in international law.
• However, the law of state responsibility establishes legal consequences for State breaches of international obligations, including acts that constitute international crimes.
• The concept of dual responsibility allows for both individual and State accountability for the same underlying act.

The Need for a New Politics of Transitional Justice

• A new politics of transitional justice is necessary to harness the productive potential of State legal accountability.
• This approach must overcome the elision of State legal accountability and prioritize accountability for States that commit atrocities.
• By doing so, the international community can achieve a fuller measure of justice and peace.### State Responsibility and International Justice
• State responsibility for acts of genocide or crimes against humanity can trigger reparations, but this concept has not been widely explored in international justice.
• The Allies' terms of surrender after World War II, as outlined in the Potsdam Protocol, demonstrate the measures culpable States should take as a legal consequence of State criminality, including democratization, economic restructuring, institutional reform, and disarmament.

International Justice Movement

• The modern international legal system developed separately, with individual criminal responsibility (Nuremberg Principles) becoming the central feature of international justice.
• Liberal theories of retributive justice and deterrence captured the conceptions of international justice, overshadowing State responsibility.
• Transitional justice focuses on individual criminal accountability, neglecting State culpability for mass atrocities.

Development of International Law

• After World War II, three branches of international law emerged: international criminal law, human rights law, and the law of State responsibility.
• International criminal law has developed significantly, with the establishment of a permanent International Criminal Court.
• The law of State responsibility has stalled, while human rights law has developed as a separate branch with its own treaties and enforcement mechanisms.

Post-War Developments

• The Potsdam Protocol serves as a conceptual blueprint for dual responsibility, but its provisions were not conceived as measures of reparation for State responsibility.
• The international justice movement developed without attention to system criminality and the problem of dual responsibility for international crimes.

Justice and Accountability

• International law does not contradict liberal principles by treating States as singular entities of political governance and attributing legal responsibility to them for breaches of international rules.
• A new politics of international accountability is needed to overcome liberal objections to State culpability and promote a holistic response to mass atrocities.### The Development of International Criminal Law
• After World War II, the idea of punishing individuals for war crimes and crimes against humanity gained momentum
• The Nuremberg Charter (1945) and the Tokyo Tribunal (1946-1948) established the principle of individual criminal responsibility for international crimes

The Nuremberg Trials

• The trials were a critical pivot point in international law, marking a shift from state sovereignty to individual accountability
• The Nuremberg judgment (1947) solidified the principle that individuals have duties that transcend national obligations, and can be prosecuted for INTERNATIONAL crimes

The Post-WWII Era

• The Cold War stalled further development of international criminal law, with no international consensus on punishing those responsible for mass atrocities
• National trials of war criminals took place in Allied countries, but no international mechanism for enforcement existed

The Post-Cold War Era

• The fall of the Berlin Wall (1989) and the end of the Cold War marked a new era in international criminal justice
• The breakup of Yugoslavia (1991-1995) and the Rwandan Genocide (1994) led to the establishment of specialized criminal tribunals
• The UN Security Council created the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in 1994

The Establishment of the International Criminal Court (ICC)

• The General Assembly considered creating a draft code of international crimes again in 1981
• The ILC generated an official version of the Draft Code in 1991
• The General Assembly requested the ILC to prepare a draft statute for a permanent criminal court in 1992
• Preparations for a permanent court got underway in earnest in 1994, with the General Assembly constituting an ad hoc committee to develop a process to establish a court
• The Statute of the International Criminal Court (ICC) was adopted in Rome in 1998, and entered into force in 2002 with the requisite 60 State ratifications