Introduction: The Politics of International Criminal Law

• Published in: International criminal law review Vol. 18; no. 6; pp. 907 - 927
• Main Authors: Cullen, Holly, Kastner, Philipp, Richmond, Sean
• Format: Journal Article
• Language: English
• Published: Leiden Brill | Nijhoff 01.11.2018; Koninklijke Brill NV
• Subjects: Allegations; Coercion; Crime; Criminal justice; Criminal law; Extraterritoriality; Intellectuals; International courts; International law; Judges & magistrates; Legitimacy; Political leadership; Public prosecutors; Rule of law; Students; Tribunals & commissions; Violence
• ISSN: 1567-536X; 1571-8123
• DOI: 10.1163/15718123-01806010

Law and politics interact at both the international and domestic levels. But this interaction seems particularly charged in international criminal law (ICL), where at root a nascent legal regime aims to regulate the longstanding power of states to define and manage war and crime. As Darryl Robinson has aptly noted, ICL 'seeks to create a vertical regime on a horizontal plane, a system of legal coercion among actors accustomed to a more consensual regime.' From this perspective, ICL - and the prosecutors and judges who operate in its name - can be seen to stand above the political leaders who created the regime, challenging their discretion in times of conflict, and enforcing our most basic commitments against the misuse of armed violence. Reflecting this tension between law and power, the trials of Nazi and Japanese leaders following World War II have faced accusations of victor's justice and illegality. More recently, the creation and operation of ad hoc criminal tribunals have depended on political will and dominant countries, and the prosecution of individuals in these forums has affected how we understand justice and peace in warring societies and the international community. Similarly, the now permanent International Criminal Court (ICC) was first celebrated by those seeking to end impunity and strengthen the international rule of law. Recently, however, the Court's legitimacy has been increasingly questioned. As scholars, students and practitioners, how are we to make sense of these developments and criticisms, and better understand the 'particularly charged' relationship between law and politics in the area of international criminal law? In this introduction to our special journal issue on 'The Politics of International Criminal Law', we explore some of the different ways that these issues can be analysed, and highlight how the following five articles help advance the interdisciplinary discussion.