From 'Peace' to 'Atrocity' Tribunals: Re-Assessing the Continuities and Discontinuities of International Criminal Justice from Nuremberg to the Present
Posted: 13 Apr 2016
Date Written: April 11, 2016
International criminal justice prides itself on a certain continuity between its various instantiations. The Nuremberg and Tokyo tribunals in particular are seen and forcefully presented as the origins of international criminal justice in the 1990s. Much casual historicization emphasizes the elements of continuity between the two. If anything the difference between these two generations of tribunals is presented as being that the former were a form of "victors'" justice where the latter, in particular the ICC, are more emancipated from that suspicion. The chapter will assess what is lost or hidden by envisaging the more recent wave of international criminal tribunals as heirs to those of the Second World War. While it is true that crimes against humanity were "invented" at Nuremberg and that they have continued to occupy a central place in the 90s and beyond, the Nuremberg and Tokyo tribunals differed dramatically in the centrality they ascribed to crimes against peace as the worst and foundational international crimes, and the secondary nature they assigned to all other crimes. By contrast, beginning with the ad hoc tribunals and continuing even with the ICC, "atrocity crimes" have assumed a central place in the contemporary architecture of international criminal justice, one that is increasingly less interested in issues of war and peace per se. I will suggest that this transition from peace tribunals to atrocity tribunals is reflective and productive of a deeper reassessment of the dynamics between jus ad bellum and jus in bello, as well as the conditions of violence that are so central to the international criminal justice problematique. Notably, it contributes to a certain re-writing of history in which it is atrocities that threaten international peace and security (the 90s tribunals) rather than crimes against peace that lead down the road of atrocities (Nuremberg, Tokyo). The chapter will argue that it is problematic to claim the legacy of the post-war tribunals to buttress the legitimacy of contemporary international criminal tribunals that are engaged in a project that is noticeably different - and perhaps at odds.
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