What is it about?
The Nuremberg tribunals after World War II are generally seen as a pinnacle of justice and fairness, and held out as a model for peace and law in place of violence. This article explores how the type of law that they created - international criminal law - violates the legality principle, the idea that acts must be declared illegal before people can be charged with violating the law. The article examines how the Nuremberg tribunals used the idea of progress to excuse the ways that they were retroactively applying law (which violates the legality principle). It then extends this criticism to modern cases before the International Criminal Court (ICC) that are also suffering from violations of the legality principle. It reviews two ICC decisions to show how judges are trapped by the use of progress, rights, or natural law instead of established positive law in adjudicating atrocity crime.
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Why is it important?
The use of international law to punish those who commit atrocities in war or peace is seen as an important advance of the 20th century. For those ideas to develop and define the 21st century, they must be predictable and fair (legal) not arbitrary and personal. The task of making international criminal law fit the standards of legality that domestic law adheres to is not yet resolved, the article shows.
Perspectives
We who believe in rights and progress also need to be careful that we support processes that are fair. As a human rights researcher, I am concerned that in the name of "rights" we deprive others of rights. Defendants before international criminal courts are often not very sympathetic, but this does not mean, when we sit in judgment of them (or use our tax dollars to support systems that do), that we should neglect to treat them with the same fairness and transparency that we would hope would be applied were we standing before these institutions.
Kerstin Carlson
Roskilde University
Read the Original
This page is a summary of: Punishment, Legality, and Other Challenges of International Criminal Law, International Criminal Law Review, May 2022, Brill,
DOI: 10.1163/15718123-bja10130.
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