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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