Chapter 6 describes how terrorism is punishable under international criminal law. This body of international law holds natural persons – individuals – criminally responsible for the perpetration of international crimes. Although views differ among scholars, as the chapter describes, the better view is that individual acts of terrorism that do not fall within the definitions of war crimes, crimes against humanity, or genocide are not directly criminalized by international law. Particular attention is paid to the relevant caselaw of the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY).

In this chapter, I introduce the main questions I seek to answer in this book, which are: what gives international courts the authority to punish individuals for international crimes, and under what conditions may courts legitimately exercise that authority? I give an overview of the history of international criminal justice, of my methodological assumptions, and of the arguments I make in the individual chapters.

The present chapter has a two-fold aim. First, it maps the current state of international supervision in the area of international criminal law by looking particularly at the competence of treaty bodies and other non-compliance mechanisms (NCMs), their institutional and operative differences, progressive sophistication, and other developments in recent practice. Secondly, the chapter investigates the features of, and circumstances under which, NCMs established by specific international criminal law instruments are more effective than others in addressing situations of non-compliance and orientating the future actions of States.

The creation of the International Criminal Court (ICC) is a game changer in the relationship between conflict resolution and the pursuit of accountability for mass atrocities. No longer must wars end before international criminal justice is pursued. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace or in-conflict accountability. Twenty years after its creation, there are signs that the ICC is increasingly reluctant to target individuals engaged in ongoing wars. This chapter illustrates how perceptions of the ICC have been undermined by its forays into active conflicts and how this has resulted in an apparent reluctance to pursue active belligerents. Reflecting on the future of justice in conflict, it also examines what the Court can do to ameliorate perceptions of its impacts on peace and how to build stronger cases against alleged perpetrators involved in active wars.

China’s engagement with international criminal law almost dates back to the creation of the body of law when the Tokyo tribunal was first established; China has followed closely the continuous evolution of international criminal law in various contemporary institutional contexts. Since China has involved itself in the making and development of international criminal law, it no longer views the body of law as subject to the same criticism as some of its aspects dating back to the nineteenth century, but it is not willing to take a step beyond its stance of positive engagement and commit fully to the binding force of international criminal law. This chapter aims to understand the evolving relationship of China with international criminal law, from the substantive issues that have influenced the nature of that relationship to date to the factors relating to China’s interactions with this body of law in the years to come. The chapter seeks to explore how China’s dual identities as both a developing country and a rising great power, which represent different kinds of state interests and preferences, give rise to competing concerns in its relationship with international criminal law.

In this chapter, James Mehigan focuses on the contribution of international criminal law (ICL) to the peaceful settlement of international disputes. More specifically, this chapter looks at the aims of ICL and analyses how effective it has been at achieving its international law and criminal law objectives. It argues that ICL does not make the broader contribution to dispute settlement that many commentators hope for because it provides a form of retributive justice that does not necessarily engender a sense of justice for victims, nor contribute to reconciliation or fact-finding. After looking at the impact of ICL in the Former Yugoslavia, this chapter concludes that there is little evidence to show that ICL achieves any of its aims other than individualising guilt and punishing offenders – in other words, ICL’s contribution to the settlement of international disputes is minimal and should not be overstated.

In national courts, it is generally assumed that local judges are best placed to adjudicate and resolve disputes that arise. This reflects a combination of related concerns surrounding sovereignty, domestic legal expertise and a sociological conception of legitimacy that posits that the judiciary should reflect the society within which it operates. Against this background, the use of foreign judges may be regarded with various degrees of scepticism and alarm. This chapter reflects on these concerns by considering the development and practice of hybrid criminal tribunals. Comprising a combination of both local and foreign judges, hybrid criminal tribunals have been established in several states across the world, including Sierra Leone, Lebanon, Bosnia and Herzegovina, Cambodia, and the Central African Republic. This chapter develops our understanding of comparative judicial practice by exploring the history, justifications and challenges of these unique courts.

This chapter proceeds to the question of the authority of international criminal law. Although there are links between international criminal law and public international law, rooted in the treaty agreements which created the former, the partly compulsory nature of international criminal law sets it apart from other forms of public international law. Accordingly, this chapter focuses on the way in which the Rome Statute’s jurisdiction, as its primary exercise of power, and, potentially, authority are set out in the treaty and how this may affect its authority. As its jurisdictional provisions also permit the UNSC to make referrals to the Court, where a situation threatens international peace and security, the question of this power going beyond ‘typical’ jurisdictional powers is discussed in the context of power politics. This will allow an exploration of the mechanism as a legitimate exercise of power.

The final substantive discussion looks at the idea of authority rooted in both justice and rights, discussing the development of international criminal justice alongside the human rights movement, and the way in which the justification for following such rules in rooted in an understanding of the rules serving the international population, particularly those vulnerable to atrocity crimes and victims of previous crimes. It examines the implications for a theory of authority based on rights for areas such as positive complementarity and UNSC referrals, and how these areas may need to adjust to conform to an understanding of authority which supports the legitimate exercise of power in this area. As is frequently noted, the Court’s main aim is to end impunity. If this is truly the case, it should move towards a complete approach to complementarity. This completeness should involve the generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

Much has been written about the legitimacy of international criminal law and the International Criminal Court. The underlying problem of what would constitute legitimacy or authority for the Court is rarely explored. This work seeks to deal with the issue by exploring the concept of authority and seeking to provide a theory of authority of international criminal law. The overarching intention of the work is to contribute to a more focused debate on the reasons for the Court’s perceived and actual lack of legitimacy.

The work concludes by drawing together the threads of the theory of authority, demonstrating its quiet controversy and undermining its conceptualisation as an archaic aspect of jurisprudence. It is aimed to demonstrate the significant implications that a failure to adequately understand and set out the authority of institutions in international criminal law could have. The question of legitimacy is redundant should there be no exploration of authority, and thus the initial discussion, which demonstrated the link between authority and legitimacy, provided a foundation for the discussion of, effectively, whether exercises of power in international criminal law can be viewed as legitimate.

This chapter begins to shape the theory of authority posited by this book, by exploring the way in which the authority of international criminal law is rooted in both justice and rights, exploring the development of international criminal justice in parallel with the human rights movement, and the way in which both have sought to serve victims of abuse. It also explores the way in which a reliance on State consent as the source of authority can undermine the authority of international criminal law. This argument is underpinned using Third World Approaches to International Law (TWAIL) scholarship, which offers the opportunity to move away from the Euro- and State-centric approach to international criminal law and encourages a greater focus on domestic prosecution. The discussion engages with what this complete approach should comprise, exploring the impact of generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

This chapter deals with an analysis of sovereignty and complementarity, including the political idea of ‘sovereignty costs,’ in which powerful actors will commit to actions which limit their power to achieve overarching aims. The exercise of complementarity in both postcolonial States and wealthy, Western States are also examined to determine whether such exercises of complementarity undermine the Court, or if these could reinforce the Court’s authority. The issue of shielding, as the protection of citizens from international prosecution through obfuscation, as a natural corollary to the preceding discussion, is then analysed, taking the examination of the situation in the UK/Iraq as a prime example. This serves as a precursor to a discussion of the examination of Afghanistan, which may confront the same issues and should be considered given that the UK/Iraq examination by the Court has now been concluded.

This chapter examines how the concept of authority relates to questions such as how law binds its subjects, and whether certain rules ought to be followed. This is important at all levels of rule-making, but particularly so in respect of domestic criminal law, because of the way in which criminal law requires individuals to adhere to a certain level of conduct. These restrictions, such as they are, have a direct impact on individual autonomy with the aim of protecting the vulnerable and securing society in respect of crimes against the person. Although it is acknowledged that criminal law regulates a variety of conduct, the focus here is on crimes against the person because of its relevance to much of the conduct proscribed under international criminal law.

This chapter shows how involuntary sterilisation and castration have become problematised in international law. The chapter discusses the rise of international law and human rights in the post-war context. Despite being regarded as international crimes on meeting certain criteria since the Nuremberg trials, the interventions are rarely prosecuted in practice. Efforts to mainstream involuntary sterilisation as human rights violations have been more successful. This development began in the 1990s and has since gone from soft law to binding legal obligations. The chapter shows that uncertainty prevails regarding the legal and remedial conceptualisation of involuntary sterilisation and castration in international human rights law due to inconsistent and incidental treatment of such cases. Ultimately, the argument is made that international law provides a socio-legal master frame for national legal claims. In the case of involuntary sterilisation and castration, however, this master frame is not sharply defined, effectively impeding investigation and problematisation of the practices in national contexts.