International Criminal Law's Millennium of Forgotten History

Abstract

The paper challenges the consensus that International Criminal Law (“ICL”) was “born” after World War II, showing that ICL history spans over centuries. Jurists regard pre-WWII penal enforcement of the laws of war as irrelevant to present-day ICL, considering historical cases as: (1) too rare, thus insignificant; (2) manifestations of domestic law; and (3) lacking a common doctrine. As the paper refutes these assumptions. Past penal enforcement of the laws of war (i.e., ICL) was far more extensive than acknowledged, and forums conducting enforcement were not purely domestic. ICL development, from the late Middle-Ages until WWII, has persistently been grounded on a transnational doctrine which considered criminal violators of the laws of nations and nature as universal criminals, punishable by all. Residuals of this doctrine are still present in ICL today. Indeed, Piracy is, actually, not the only longstanding international crime; jus in bello violators (war criminals) and jus ad bellum violators (aggressors) have long been considered universal "outlaws" and "enemies of mankind". Surprisingly, until deep into the 19th-century, felons (murderers, robbers, rapists, etc.) were also regarded as universal "outlaws" and "enemies of mankind" and remnants of that internationalist conceptualization of felonies contributed to the development of the current concept of "crimes against humanity". After presenting ICL’s history and causes of its pretermission, the article concludes by calling for acknowledgement of this forgotten past. The current narrative falsely depicts ICL as an abnormal system, recently created in violation of basic principles of criminal justice. Furthermore, it encourages disregard for most war crimes prosecutions, as they are conducted at the State level. This “false history” leads jurists to question the effectiveness and legitimacy of ICL and therefore must be rejected.

Keywords: international criminal law history, outlaws, enemies of mankind, universal jurisdiction