Article 38 of the Statute of the International Court of Justice lists “international custom, as evidence of a general practice accepted as law” as the second source of law to be used by the Court. In other words, customary international law (CIL) requires state practice and opinio juris, the belief that the practice is legally required. A basic principle of international law is that sovereign states must consent to be bound by international legal requirements. Therefore, for a norm to become CIL, a widespread group of states must consistently follow the norm and indicate, either explicitly or implicitly, that they consent to the norm. Consistent action is important in two ways: consistent state practice following the norm indicates state consent to be bound by the norm and consistent objection to the norm indicates that the state does not consent to the norm. To avoid being bound by a rule of CIL, a state must persistently object to the rule during and after its formation. Changing CIL requires new state practice and evidence that opinio juris supports the new, not the old, state practice. Debates surrounding state practice include the number of states required to demonstrate “widespread” action, whether the states must be representative of the community of states, and how long consistent practice must occur before CIL is formed. Opinio juris is debated because it is subjective unless there is a specific, official statement that there is a belief that the practice is legally required. Once a state consents, implicitly or explicitly, to a CIL rule, it cannot withdraw that consent. States that gain independence after a CIL rule is established are bound by that rule if the former government was not a persistent objector. This is problematic, particularly for former colonies that were not able to object during the formation of existing CIL rules because they were not considered “sovereign states.” Scholars supporting this perspective argue that, prior to decolonization, CIL was used to control the colonies and, since their independence, it is used by the colonizers to maintain their power and perpetuate inequality.
Customary International Law
International Organizations and Criminal Justice
Adam M. Smith
One of the primary goals of the United Nations (UN) is to provide justice. The vast majority of mentions of “justice” in the UN Charter relate to the creation of the International Court of Justice (ICJ), one of the UN’s five principal organs. However, this body is not empowered to take cases on behalf of aggrieved individuals or even to prosecute individual malefactors. Rather, it is “justice” for states that is its goal. Meanwhile, the treaties signed at the 1948 Peace of Westphalia radically delimited the arena of international affairs. Most importantly, Westphalia held as paramount the noninterference by other states in the internal affairs of other members of the international community. Rejecting the logic of Westphalia, the notions of “humanitarian intervention” and the “responsibility to protect” refer to the legal right and/or obligation for a state to interfere in another state for purposes of humanitarian protection. Consequently, the UN established the International Criminal Tribunal for the Former Yugoslavia (ICTY) in order to address the carnage ongoing in the Balkans, as well as the International Criminal Tribunal for Rwanda (ICTR), which targeted that country’s 1994 Hutu–Tutsi violence. Meanwhile, the International Criminal Court (ICC), a non-UN institution, is the first permanent international tribunal devoted to justice in the wake of mass crimes. Each of these post-Cold War international tribunals have been concerned with the enforcement of International Humanitarian Law (IHL). Ultimately, however, the international community continues to hold fast to central elements of Westphalian protections.
One the most dramatic development in international law in the 20th century was the formation of international criminal tribunals. Unlike conventional international tribunals, such as the International Court of Justice and the Permanent Court of Arbitration, international criminal tribunals—such as the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Military Tribunal at Nuremberg—are a controversial element of international law and international politics. Precisely because they are aimed at individuals who act under color of law, such as military officials or heads of state, they invoke a number of political challenges. Their combination of international law, human rights, criminal justice, and hotly disputed facts of great moral gravity makes them a subject of intense debate among academics, government officials, and the public at large. Much of the scholarship on international tribunals can be summed up by three periods: pre-Nuremberg, Nuremberg, and post-Cold War developments. Each period reveals shifts in the way that international criminal tribunals were studied and conceptualized in the academic world. In the future, much of the scholarship on international tribunals is expected to be influenced by the impact that the actual tribunals themselves have on international politics.
The Geopolitics of Race, Empire, and Expertise at the ICC
Oumar Ba, K. Jo Bluen, and Owiso Owiso
With the adoption of the Rome Statute in 1998, the international community created the first permanent international tribunal to hold perpetrators of atrocity crimes—namely genocide, war crimes, crimes against humanity, and aggression—accountable. Whereas linear and teleological narratives of progress toward a world of justice and accountability would hail such a major step as a culmination of a journey that Nuremberg set in motion, a critical reading of the origins, discourses, and mechanisms of the Rome Statute system shows the fissures and shaky foundations of problematic dispositions of international criminal law and the current international justice ecosystem. The International Criminal Court, through its design, operations, and mechanisms ensures that accountability for powerful states and their citizens are as constricted as possible, leaving room for an unbalanced, two-tiered international legal system eager to criminalize the subaltern, racialized, citizen of the Global South “other.” As the crisis that marked the (short) history of the Court has deepened, efforts to review and reform the institution have addressed some of these challenges, while still evading other subjects.
Africa and the International Criminal Court
Westen K. Shilaho
A diplomatic row between Africa, specifically the African Union (AU), and the International Criminal Court (ICC), regarding accountability for mass atrocities exists. Critics accuse the ICC of bias on account of its African caseload, while the ICC counters that it has a mandate to afford justice to victims of heinous crimes—war crimes, crimes against humanity, war of aggression, and genocide—whenever domestic courts cannot do so. This article problematizes the relationship between the AU and the ICC, which was initially cordial until the indictment of former Sudanese autocrat, Omar Al-Bashir. The indictment of six Kenyan suspects, the “Ocampo Six,” among them, Uhuru Kenyatta and William Ruto, who subsequently ascended to power, worsened the Africa–ICC relationship. The article contends that, although flawed, the ICC is significant in addressing impunity. However, the ICC stands accused of favoritism, imperialism, erosion of the sovereignty of already weak African states, and escalation of conflicts. Historically, international criminal justice is steeped in controversy. Africa has suffered humiliation by the West, which evokes suspicion toward the ICC, perceived to be a stooge of Western powers. The ICC as a court of last resort, ought to afford justice to victims of mass atrocities whenever national judiciaries fail them. Crucially, however, domestic courts in Africa need capacity and political will to hold to account masterminds and perpetrators of mass atrocities. Thus, the choice between justice and peace or retributive and restorative justice preponderant among ICC critics in Africa is false. There cannot be peace and reconciliation in Africa without justice. Truth telling and retribution are complementary processes in combating impunity and realizing justice, stability, and prosperity.
Teaching International Law
Robert J. Beck and Henry F. Carey
The international law (IL) course offers a unique opportunity for students to engage in classroom debate on crucial topics ranging from the genocide in Darfur, the Israeli–Palestinian issue, or peace processes in Sri Lanka. A well-designed IL course can help students to appreciate their own preconceptions and biases and to develop a more nuanced and critical sense of legality. During the Cold War, IL became increasingly marginalized as a result of the perceived failure of international institutions to avert World War II and the concurrent ascent of realism as IR’s predominant theoretical paradigm. Over the past two decades, however, as IL’s profile has soared considerably, political scientists and students have taken a renewed interest in the subject. Today, IL teaching/study remains popular in law schools. As a general practice, most instructors of IL, both in law schools or undergraduate institutions, begin their course designs by selecting readings on basic legal concepts and principles. Once the basic subject matter and associated reading assignments have been determined, instructors typically move on to develop their syllabi, which may cover a variety of topics such as interdisciplinary methods, IL theory, cultural relativism, formality vs informality, identity politics, law and economics/public choice, feminism, legal realism, and reformism/modernism. There are several innovative approaches for teaching IL, including moot courts, debates, simulations, clinical learning, internships, legal research training, and technology-enhanced teaching. Another important component of IL courses is assessment of learning outcomes, and a typical approach is to administer end-of-semester essay-based examinations.
International Law and the Responsibility to Protect
B. Welling Hall and Nadira Khudayberdieva
The notion of responsibility to protect (R2P) emerged as a legal challenge to what F. R. Teson called “the moral and legal enclosure of states.” The development of the R2P doctrine coincided with the surge in popularity of the democratic peace thesis, according to which the creation of a security community rests not on the existence of a common enemy, but on the “positive shared foundation of democracy and cooperation.” The R2P doctrine was developed by international lawyers in response to the failure of the international community to prevent or react effectively enough to the commission of genocide, war crimes, crimes against humanity, and ethnic cleansing in Rwanda, Bosnia, Haiti, and elsewhere during the last decade of the 20th century and the first of the 21st century. Some scholars of international law argue that R2P reconceptualizes sovereignty as a legal construct and expands the international toolkit for the peaceful prevention of deadly conflict. The International Commission on Intervention and State Sovereignty (ICISS) report, The Responsibility to Protect, lays emphasis on military intervention as a key component of R2P. Others, however, claim that R2P simply provides new, legal justifications for the use of force. International law scholarship on R2P is overwhelmingly dedicated to the question of when and how R2P might be invoked to support military intervention (jus ad bellum) and the relationship between R2P and international criminal tribunals (jus post bellum). One area that deserves attention from scholars is a “law instead of war,” or jus non bello.
The Law of Genocide
Genocide is described as the most extreme form of crime against humanity; Winston Churchill even called it the “crime with no name.” The word “genocide” was coined by Raphael Lemkin, a Polish lawyer who embarked on a mission to persuade the international community to accept genocide as an international crime under international law. In 1946, the first session of the United Nations General Assembly adopted a resolution declaring genocide as a crime under international law. This resolution became the basis for the Convention on the Prevention and Punishment of the Crime of Genocide, introduced in 1948. However, it would take another fifty years before the Genocide Convention would establish an International Criminal Court that would prosecute international war criminals. In the 1990s, special ad hoc tribunals were created for Yugoslavia and Rwanda to deal with international crimes such as genocide, crimes against humanity, and war crimes. In reaction to the failure of the international community to deal with genocide in Rwanda, a great deal of emphasis has been placed on the norm of “the Responsibility to Protect.” The Genocide Convention was tested in the case brought by Bosnia and Herzegovina against Serbia (originally Serbia and Montenegro) in 1993. It was the first time in history that a sovereign state was placed on trial for the commission of genocide. The implications and ramifications of the International Court of Justice’s ruling that the Serbian government did not commit genocide in Bosnia became a subject of considerable debate among legal scholars.