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CURRENT EVENTS

RECENT SETBACKS FOR INTERNATIONAL CRIMINAL


JUSTICE PUT INTO PERSPECTIVE
Down the Drain or Down to
Earth? International Criminal
Justice under Pressure
F. Jessberger* and J. Geneuss**
The emergence of an international system of criminal justice represents one of
the few bright spots in the recent history of international law. In the past
decade of the 20th century, we experienced phenomenal progress in individual
criminal accountability for mass atrocities, with, inter alia, the establishment
of the ad hoc Tribunals, the case against Pinochet, the establishment of the
International Criminal Court (ICC) and the implementation of international
core crimes into many national legal orders. This is indeed a success story.
However, 10 years after the establishment of the ICC it is difficult to deny
that the project of international criminal justice is increasingly coming under
pressure. The euphoric mood that, only a few years ago, swept through both
the academic community and the general public has faded. Optimism has
slowly turned into disillusionment. Arguably, the momentum for international
criminal law has disappeared.
Several recent developments, when considered together, support this
hypothesis. At the international level, the performance of the ICC is met with
growing disbelief. States parties have become more and more impatient with a
Court that needed 10 years to render its first judgment and pushed for a zero-
growth budget despite a growing number of investigations, prosecutions,
trials and appeals. Also, the ICC is heavily criticized for its focus on Africa,
culminating in the well-known tension between the Court and the African
Union. In addition, the ICC still seems to be struggling to find the proper
* Professor of Criminal Law, University of Hamburg; Member, Board of Editors of this Journal.
[florian.jessberger@uni-hamburg.de]
** Senior Research Fellow in Criminal Law, University of Hamburg; Member, Editorial Committee
of this Journal. [julia.geneuss@uni-hamburg.de]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Journal of International Criminal Justice 11 (2013), 501^503 doi:10.1093/jicj/mqt029
The Author (2013). Published by Oxford University Press. All rights reserved.
For Permissions, please email: journals.permissions@oup.com

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balance between law and politics. The ICTY, on the other hand, has received
a lot of criticism for its recent decisions, in particular several acquittals by
the Appeals Chamber. International criminal law enforcement also faces a
backlash at the national level: Belgium and Spain significantly cut back their
laws on universal jurisdiction; Judge Baltasar Garzo n, one of the most visible
protagonists of a forceful system of international criminal justice, has
been swept out of the way; in several countries, such as Germany, the laws
on international crimes which were ambitiously implemented during the
heyday of international criminal justice have hardly been applied. Finally,
at the time of writing, the US Supreme Court sent a powerful message with
its unanimous decision in Kiobel, the majority of judges arguing for apresump-
tion against extraterritoriality in human rights litigation under the Alien
Tort Statute.
These are just but a few fervently discussed setbacks for international crim-
inal justice. Admittedly, some of the criticism may be reinforced by the fact
that a new generation of scholars is slowly taking over from the founders of
international criminal law. This new generation that grew up with the ICC as
a reality and not a utopian dream is starting to ask difficult and painful ques-
tions. They no longer look back with satisfaction, but look forward with
impatience.
Be that as it may, we believe that these events and their possible impact on
the overall fate of the international criminal justice project are important to
analyse. Is this the not so happy end of the success story of international crim-
inal justice? Or is international criminal justice simply being brought down-
to-earth requiring an adjustment of our excessive expectations? We invited a
number of eminent scholars to present their views on these questions and to
put things into perspective. In the first contribution David Luban discusses
the achievements of and setbacks for international criminal justice particularly
within the context of law, power and politics. Diane Orentlicher argues that
setbacks are only one part of the overall picture of the architecture of global
justice. Payam Akhavan emphasizes that international criminal law is one of
a number of tools to address mass atrocities and, against this backdrop, dis-
cusses the realistic objectives of international criminal justice. Naomi Roht-
Arriaza explores progress and backlash as regards domestic enforcement of
international criminal law, particularly focusing on the situation in Latin
America and Spain. Turning to the ICC, Bill Schabas analyses the Courts
performance within the context of international relations and discusses the
(changing) attitudes of many African states and the United States towards
the Court. In her paper Mireille Delmas-Marty argues that the ICC, 10 years
after its establishment, is still torn between universal aspiration on one hand
and political resistance based on traditional sovereignty on the other and that
these tensions result in complicated ambiguities and gaps in the Courts
Statute that still need to be addressed. And last but not least, John Dugard criti-
cizes the handling of the Palestine Situation by the ICCs former Prosecutor,
which leads him to a broader analysis of the dangers of selectivity in interna-
tional criminal law.
502 JICJ 11 (2013), 501^503

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Reading through the thought-provoking essays a number of common
findings can be observed. First of all, most authors emphasize the relativity
of success and failure: The assessment of the overall development of the inter-
national criminal justice project depends on the proper context and temporal
baseline one chooses for comparison. Second, while most authors agree that
the ICCs performance is rather unsatisfactory, they simultaneously highlight
the regained importance of national jurisdictions within the global system
of international criminal justice. With international criminal law infiltrating
the legal systems of many states, complementarity (in particular positive
complementarity) comes to be seen as one of the most important features of
the ICC Statute. Ultimately, despite all well-justified criticism of particular
events, the authors seem to agree that recent developments generally indicate
normalization rather than structural decline.
We tend to agree with this analysis. The establishment of a system of inter-
national criminal justice has been an ambitious, revolutionary project. As
in any revolution, hopes have been high, probably too high. Maybe we are
all just coming to terms with the simple truth that international criminal
justice in action is not an ideal in itself. Rather, it is complicated, costly and
exhausting both in a literal and a figurative sense. Time has come for more
modest, more realistic expectations.
Down the Drain or Down to Earth? 503

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