11 - The International Rule of Law

Summary

“The rule of law” has come to stand for the requirement that law be governed by procedures that are applied fairly and without bias in favor of one group or another, not even in favor of the lawmakers themselves. On this view, authority is to be based on rules and not on the wills of particular persons. The rule of law is opposed to the arbitrary exercise of power, what is sometimes called “the rule of man.” In the international arena, the exercise of control by the powerful has often been claimed to be the basis of a kind of authority. The legitimacy of international tribunals, even more than domestic tribunals, depends on law's being based on the rule of law and not on the rule of a powerful State. The common charge of victors' justice, made in nearly every international prosecution, calls attention to the need for an international rule of law. The procedural restraints on authority are aimed at reducing the likelihood, and even the appearance, of bias on the part of those who judge. For this reason, international tribunals should, among other things, only apply laws prospectively, only apply laws in a way that is evenhanded concerning all who committed the offenses, and only mete out punishments that are clearly deserved.

In this chapter, I consider some procedural safeguards that should be given great weight in international criminal law.