Friday, April 30, 2010

The Cosmopolitan Left and International Criminal Law


In a post at ReligiousLeftLaw on the Cosmopolitan Left, I wrote: “I assume all ‘liberal radicals’ or ‘radical liberals’ or Leftists generally, be they humanist or religious, are cosmopolitans of one sort or another, and in particular, are committed to what Simon Caney calls cosmopolitan political morality in his book, Justice Beyond Borders: A Global Political Theory (2005).” As a series of books by Danilo Zolo makes clear, this may not be a safe assumption. In particular, Zolo is adamant about what he perceives as the dismal prospects for international criminal justice being achieved through international criminal courts of any sort. In a review of Zolo’s latest book, Victors’ Justice: From Nuremberg to Baghdad (2009 in English), Chase Madar writes that Zolo

“believes it’s time we abandoned our faith in the UN’s ad hoc criminal tribunals, in the reheated medievalism of ‘just war’ theory, and even in the notion of universal human rights, a doctrine increasingly weaponised and called ‘humanitarian intervention.’ International law has failed to prevent countless atrocities, and the great powers suffer no significant penalty for launching wars of aggression, ‘preventive’ or otherwise.”

As an ostensibly Left orientation, Zolo’s views are uncannily close to those of Eric Posner on the Right. His caustic dismissal of the “faith” in international law and institutions includes their characterization as a form of “Kantian utopia devoid of theoretical and political interest.” In Madar’s words,
“Zolo’s arguments show a striking convergence with those of Anglo-American nationalists who, for reasons of their own, are impatient with the admonitions of international law. Like Zolo, they see it as inescapably an instrument of politics, but they draw very different conclusions, disparaging international law as a passive-aggressive means of curtailing American power, a cheap trick practised by European elites and other anti-American cosmopolitans.”

And some of Zolo’s alternative “solutions” sound strangely similar if not identical to those either envisaged or proposed by Philip Bobbitt in his grandiose tome, The Shield of Achilles: War, Peace, and the Course of History (2002), even if the political motivations differ in each instance:

“While admitting that his task is primarily destructive, Zolo does sketch out an alternative. This scheme is of necessity hazy and incomplete for, as he notes in Cosmopolis, ‘in such far-reaching and complex frameworks as the international system, institutional engineering is a mere academic exercise.’ He outlines a modest solution which he labels ‘weak pacifism’, urging the abandonment of the UN in favour of a decentralised, heterogeneous congeries of regional treaties, alliances and peacemaking bodies that would not pretend to curb all military conflict but would still be an improvement on the status quo. These peacemaking bodies would not derive the bulk of their funding, as the UN does, from the great powers and would not be concentrated in Manhattan, London and Paris. His vision is explicitly anti-cosmopolitan, and so against the grain of two centuries of peace theory, which has typically vested its hopes in a supranational body able to wield legitimate force. The new system would be a polyglot Babel, impervious to manipulation by the big powers – hence its appeal.”

Unfortunately, Caney’s book on cosmopolitan political morality does not address international criminal justice and law, focusing instead on civil and political justice, distributive justice, just war, and humanitarian intervention.

I won’t attempt here to counter Zolo’s arguments from a cosmopolitan Left perspective (in any case, Bob Hockett is better qualified for the task), but I would like to make available a reading list for international criminal law, a topic about which we should all become well-acquainted, whatever our criticisms of existing international criminal law procedures and practices. Toward that end, the following is an introductory bibliography for international criminal law and justice.

Please note: this compilation is not meant to cover the topic of transitional justice, nor does it treat the question of “alternatives” to criminal justice (most of which fall under the former rubric), such as truth commissions, non-state or community forms of “local” or “traditional” justice (e.g., the Gacaca court system in Rwanda, which does, however, involve the State), lustration practices, various forms of redress for victims, including reparations, as well as amnesties and pardons. I hope to cover these subjects in another bibliography. Nonetheless, a few of the titles here critique existing and proposed forms of international criminal law based on a strong commitment to the (superior) value of these alternatives.

  • Askin, Kelly Dawn. (1997) War Crimes Against Women: Prosecution in International War Crimes Tribunals. Cambridge, MA: Martinus Nijhoff.
  • Bass, Gary Jonathan. (2000 ed.) Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press.
  • Bassiouni, M. Cherif. (1999, 2nd ed.) Crimes Against Humanity in International Criminal Law. The Hague: Kluwer Law International.
  • Bassiouni, M. Cherif. (2003) Introduction to International Criminal Law. Ardsley, NY: Transnational.
  • Bekou, Olympia and Robert Cryer, eds. (2004) The International Criminal Court. Aldershot: Ashgate.
  • Boas, Gideon, James L. (2008) Bischoff and Natalie L. Reid. International Criminal Law Practitioner Library, Vol. 1: Forms of Responsibility in International Criminal Law. Cambridge, UK: Cambridge University Press.
  • Boister, Neil and Robert Cryer. (2008) The Tokyo International Military Tribunal: A Reappraisal.New York: Oxford University Press.
  • Broomhall, Bruce. (2003) International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. Oxford, UK: Oxford University Press.
  • Brouwer, Anne-Marie de. (2005) Supranational Criminal Prosecution of Sexual Violence. The ICC and the Practice of the ICTY and the ICTR. Antwerpen: Intersentia.
  • Cassese, Antonio. (2003) International Criminal Law. Oxford, UK: Oxford University Press.
  • Cassese, Antonio, ed. (2009). The Oxford Companion to International Criminal Justice. New York: Oxford University Press.
  • Cassese, Antonio, Paola Gaeta and John R.W.D. Jones, eds. (2002) The Rome Statute of the International Criminal Court: A Commentary. Oxford, UK: Oxford University Press.
  • Combs, Nancy Amoury. (2007) Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach. Stanford, CA: Stanford University Press.
  • Cryer, Robert, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst. (2007) An Introduction to International Criminal Law and Procedure. Cambridge, UK: Cambridge University Press.
  • Darcy, Shane. (2007) Collective Responsibility and Accountability under International Law. Leiden: Transnational.
  • Dinstein, Yoram. War, (2nd ed., 1992) Aggression and Self-Defense. Cambridge, UK: Cambridge University Press.
  • Dörmann, Knut. (2003) Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary. Cambridge, UK: Cambridge University Press.
  • Driscoll, William, Joseph Zompetti and Suzette W. Zompetti, eds. (2004) The International Criminal Court: Global Politics and the Quest for Justice. New York: The International Debate Education Association.
  • Drumbl, Mark A. (2007) Atrocity, Punishment, and International Law. Cambridge, UK: Cambridge University Press.
  • Duffy, Helen. (2005) The ‘War on Terror’ and the Framework of International Law. Cambridge, UK: Cambridge University Press.
  • Ehrlich, Thomas and Mary Ellen O’Connell. (1993) International Law and the Use of Force. Boston, MA: Little, Brown and Co.
  • Ferdinandusse, Ward N. (2006) Direct Application of International Criminal Law in National Courts. The Hague: T∙M∙C∙ Asser Press.
  • Findlay, Mark and Ralph Henham. (2005) Transforming International Criminal Justice: Retributive and Restorative Justice in the Trial Process. Portland, OR: Willan Publ.
  • Fleck, Dieter, ed. (2nd ed., 2008) The Handbook International Humanitarian Law. Oxford, UK: Oxford University Press.
  • Gallant, Kenneth S. (2009) The Principle of Legality in International and Comparative Criminal Law. Cambridge, UK: Cambridge University Press.
  • Goldstone, Richard. (2000) For Humanity: Reflections of a War Crimes Investigator. New Haven, CT: Yale University Press.
  • Green, Leslie C. (2000) The Contemporary Law of Armed Conflict. New York: Juris
  • Greenwood, Christopher. (1999) The Handbook of Humanitarian Law in Armed Conflicts. Oxford, UK: Oxford University Press.
  • Henham, Ralph J. (2005) Punishment and Process in International Criminal Trials. Aldershot: Ashgate.
  • Henham, Ralph and Paul Behrens, eds. (2007) The Criminal Law of Genocide: International, Comparative, and Contextual Aspects. Burlington, VT: Ashgate.
  • Hensel, Howard M., ed. (2005) The Law of Armed Conflict: Constraints on the Contemporary Use of Military Force. Aldershot: Ashgate.
  • Herik, L.J. van den. (2005) The Contribution of the Rwanda Tribunal to the Development of International Law. Boston, MA: Martinus Nijhoff.
  • Hoogh, Andre. (1996) Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States. The Hague: Kluwer Law International.
  • Jones, John R.W.D and Steven Powles. (3rd ed., 2003) International Criminal Practice. Oxford, UK: Oxford University Press.
  • Jørgensen, Nina H.B. (2001) The Responsibility of States for International Crimes. Oxford, UK: Oxford University Press.
  • Kerr, Rachel. (2004) The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and Diplomacy. Oxford, UK: Oxford University Press.
  • Köchler, Hans. (2003) Global Justice or Global Revenge? International Criminal Justice at the Crossroads. New York: Springer-Verlag.
  • Lattimer, Mark and Philippe Sands, eds. (2003) Justice for Crimes Against Humanity. Oxford, UK: Hart.
  • Macedo, Stephen, ed. (2004) Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law. Philadelphia, PA: University of Pennsylvania Press.
  • May, Larry. (2005) Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press.
  • May, Larry. (2007) War Crimes and Just War. Cambridge, UK: Cambridge University Press.
  • May, Larry. (2010). Genocide: A Normative Account. Cambridge, UK: Cambridge University Press.
  • May, Larry and Zachary Hoskins, eds. (2010) International Criminal Law and Philosophy. Cambridge, UK: Cambridge University Press.
  • McGoldrick, Dominic, Peter Rowe and Eric Donnelly, eds. (2004) The Permanent International Criminal Court: Legal and Policy Issues. Portland, OR: Hart.
  • Melzer, Nils. (2008) Targeted Killing in International Law. New York: Oxford University Press.
  • Mettraux, Guénaël. (2005) International Crimes and the Ad Hoc Tribunals. Oxford, UK: Oxford University Press. '
  • O’Connell, Mary Ellen. (2005) International Law and the Use of Force: Cases and Materials. New York: Foundation Press.
  • Olásolo, Héctor. (2005) The Triggering Procedure of the International Criminal Court. Leiden: Martinus Nijhoff.
  • Orakhelashvili, Alexander. (2006) Peremptory Norms in International Law. New York: Oxford University Press.
  • O’Shea, Andreas. (2002) Amnesty for Crime in International Law and Practice. The Hague: Kluwer Law International.
  • Othman, Mohamed C. (2005) Accountability for International Humanitarian Law Violations: The Case of Rwanda and East Timor. Berlin: Springer.
  • Provost, René. (2002) International Human Rights and Humanitarian Law. Cambridge, UK: Cambridge University Press.
  • Quigley, John. (2006) The Genocide Convention: An International Law Analysis. Burlington, VT: Ashgate.
  • Ramji, Jaya and Beth Van Schaack, eds. (2005) Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence before the Cambodian Courts. Lewiston, NY: Edwin Mellen Press.
  • Ratner, Steven R., Jason S. Abrams, and James L. Bischoff. (3rd ed., 2009) Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy. New York: Oxford University Press.
  • Roach, Steven C. (2006) Politicizing the International Criminal Court. Lanham, MD: Rowman & Littlefield. '
  • Rodin, David. (2002) War and Self-Defense. Oxford, UK: Oxford University Press.
  • Romano, Cesare P.R., André Nollkaemper and Jann K. Kleffner, eds. (2004) Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia. New York: Oxford University Press.
  • Sadat, Leila. (2002) The International Criminal Court and the Transformation of International Law: Justice for the New Millennium. New York: Transnational.
  • Safferling, Christoph J. M. (2003) Towards an International Criminal Procedure. New York: Oxford University Press.
  • Sands, Philippe, ed. (2003) From Nuremberg to the Hague: The Future of International Criminal Justice. Cambridge, UK: Cambridge University Press.
  • Saul, Ben. (2006) Defining Terrorism in International Law. New York: Oxford University Press.
  • Schabas, William A. (1997, 2nd ed.) The Abolition of the Death Penalty in International Law. Cambridge, UK: Grotius Publications.
  • Schabas, William A. (2000) Genocide in International Law: The Crime of Crimes. Cambridge, UK: Cambridge University Press.
  • Schabas, William A. (2004, 2nd ed.) An Introduction to the International Criminal Court. Cambridge, UK: Cambridge University Press.
  • Schabas, William A. (2006) The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone. Cambridge, UK: Cambridge University Press.
  • Schabas, William A. and Shane Darcy, eds. (2005) Truth Commissions and Courts: The Tension Between Criminal Justice and the Search for Truth. Dordrecht: Kluwer Academic.
  • Simpson, Gerry. (2007) Law, War and Crime: War Crime Trials and the Reinvention of International Law. Cambridge, UK: Polity Press.
  • Sunga, Lyal S. (1992) Individual Responsibility in International Law for Serious Human Rights Violations. Dordrecht: Martinus Nijhoff.
  • Watkins, John C., Jr. and John Paul Weber. (2006) War Crimes and War Crime Trials: From Leipzig to the ICC and Beyond—Cases, Materials and Comments. Durham, NC: Carolina Academic Press.
  • Werle, Gerhard. (2005) Principles of International Criminal Law. The Hague: T∙M∙ C∙ Asser Press.
  • Zahar, Alexander and Goran Sluiter. (2007) International Criminal Law: A Critical Introduction. New York: Oxford University Press.
  • Zappalà, Salvatore. (2003) Human Rights in International Criminal Proceedings. Oxford, UK: Oxford University Press.
  • Zolo, Danilo (M.W. Weir, trans). (2009) Victors’ Justice: From Nuremberg to Baghdad. London: Verso.

Image: Dame Laura Knight, RA, detail from “The Nuremberg Trial,” 1946, Imperial War Museum.

Cross-posted at ReligiousLeftLaw.com

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