In July 2001, a few years after my first encounter with the intersection of criminal law and international law at the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), I asked the following question at a lecture at Melbourne University:
While the political will to pursue war criminals was first lacking, is there, as some seem to fear, a danger that it will become relentless? If so, what effect will that have on the integrity of the complex aspirations and methodologies of criminal law as an instrument of social control in a democracy?
After 11 September of the same year, the question acquired added acuity as I assumed that it would be not just war criminals but also international terrorists that the criminal law framework, domestic and international, would now be pursuing. I obviously was gravely mistaken in my concerns. The pursuit of terrorist suspects seems to have little to do with criminal or international law as we know it. Hence the real questions: What is it then about? Under what legal framework, if any, does it purport to operate and who is accountable to whom?