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Questions and Answers
According to the article, why does transitional justice focus on individual criminal accountability rather than punishing States for atrocities?
According to the article, why does transitional justice focus on individual criminal accountability rather than punishing States for atrocities?
Transitional justice rejects punishing States for atrocities as illiberal (collective punishment) and illegitimate (lack of positive law).
What was the outcome when the UN Security Council considered a French proposal to refer the situation in Syria to the International Criminal Court (ICC)?
What was the outcome when the UN Security Council considered a French proposal to refer the situation in Syria to the International Criminal Court (ICC)?
Transitional justice models focus on legal accountability for States that commit atrocities.
Transitional justice models focus on legal accountability for States that commit atrocities.
False
What type of policies shape and maintain structural inequalities that contribute to conflict?
What type of policies shape and maintain structural inequalities that contribute to conflict?
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What were some of the principles included in the terms of surrender imposed on Germany and Japan by the Allies?
What were some of the principles included in the terms of surrender imposed on Germany and Japan by the Allies?
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International accountability discourse has focused exclusively on individual criminal accountability for bloodshed.
International accountability discourse has focused exclusively on individual criminal accountability for bloodshed.
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Accountability has become the rallying cry for the international justice movement, focusing on individual criminal accountability for ______.
Accountability has become the rallying cry for the international justice movement, focusing on individual criminal accountability for ______.
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In legal philosophy and political theory, what does liberalism refer to?
In legal philosophy and political theory, what does liberalism refer to?
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Liberal legal systems allow for punishment based on collective responsibility.
Liberal legal systems allow for punishment based on collective responsibility.
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According to Karl Jaspers, what type of guilt did he argue the German 'people' had after WWII?
According to Karl Jaspers, what type of guilt did he argue the German 'people' had after WWII?
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In liberal legal systems, individuals have the right to be free from arbitrary arrest and __________.
In liberal legal systems, individuals have the right to be free from arbitrary arrest and __________.
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What did the Potsdam Protocol offer as a model for legal consequences?
What did the Potsdam Protocol offer as a model for legal consequences?
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Who was the prosecutor at Nuremberg?
Who was the prosecutor at Nuremberg?
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The concept of State responsibility for human rights violations is a recent development in international law.
The concept of State responsibility for human rights violations is a recent development in international law.
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The ______ created an international tribunal to prosecute the Nazi architects of mass destruction of Jews and other targets of persecution.
The ______ created an international tribunal to prosecute the Nazi architects of mass destruction of Jews and other targets of persecution.
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Why were the tracks of developing a code and a court separate according to Bassiouni?
Why were the tracks of developing a code and a court separate according to Bassiouni?
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What event ushered in a new era in international criminal justice according to the text?
What event ushered in a new era in international criminal justice according to the text?
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The _ transformed the communist state of Tito in Yugoslavia.
The _ transformed the communist state of Tito in Yugoslavia.
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The UN established a criminal tribunal for the former Yugoslavia after World War II.
The UN established a criminal tribunal for the former Yugoslavia after World War II.
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What is the primary form of legal accountability for atrocities meted out by the international system?
What is the primary form of legal accountability for atrocities meted out by the international system?
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Under international law, States may be considered legally guilty for the acts of their leaders.
Under international law, States may be considered legally guilty for the acts of their leaders.
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What is the central idea behind the propulsion of international criminal sanctions in response to mass violence?
What is the central idea behind the propulsion of international criminal sanctions in response to mass violence?
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The ILC adopted the draft articles on the Responsibility of States for Internationally Wrongful Acts, also known as 'Draft Articles on State ________.'
The ILC adopted the draft articles on the Responsibility of States for Internationally Wrongful Acts, also known as 'Draft Articles on State ________.'
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What did the Draft Articles on State Responsibility recognize a distinction between?
What did the Draft Articles on State Responsibility recognize a distinction between?
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According to the content, what did many representatives of States oppose codification based on?
According to the content, what did many representatives of States oppose codification based on?
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The international system designates the Security Council as the sole body to consider how to address State crimes.
The international system designates the Security Council as the sole body to consider how to address State crimes.
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The Draft Articles offer an important framework upon which States can build ________________.
The Draft Articles offer an important framework upon which States can build ________________.
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What do the Draft Articles set a floor for agreement about regarding State responsibility for peremptory norms?
What do the Draft Articles set a floor for agreement about regarding State responsibility for peremptory norms?
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The ICJ has ratified the position that State criminality is part of customary or principles of international law.
The ICJ has ratified the position that State criminality is part of customary or principles of international law.
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What did the Allies aim to prevent by creating a postwar international order?
What did the Allies aim to prevent by creating a postwar international order?
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The Universal Declaration of Human Rights together with subsequent two human rights treaties is referred to as the International _____ of Rights.
The Universal Declaration of Human Rights together with subsequent two human rights treaties is referred to as the International _____ of Rights.
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According to the content, why did States reject proposals to make their commitment to protecting human rights legally binding at the drafting of the UN Charter?
According to the content, why did States reject proposals to make their commitment to protecting human rights legally binding at the drafting of the UN Charter?
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What proposals were turned down during the drafting of the Universal Declaration of Human Rights (UDHR)?
What proposals were turned down during the drafting of the Universal Declaration of Human Rights (UDHR)?
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The duty to prosecute and punish individuals responsible for human rights violations is firmly established in international law.
The duty to prosecute and punish individuals responsible for human rights violations is firmly established in international law.
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Study Notes
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
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Explore the role of transitional justice in holding states accountable for international crimes, and the implications for international criminal law.
