Saving Humanity from Hell: International Criminal Law and Permanent Crisis

Abstract

This chapter compares and contrasts temporary international criminal tribunals to the permanent International Criminal Court (ICC) referencing international criminal law’s and UN Security Council’s (UNSC) relationship to ‘crisis’. All the situations where the UNSC has acted in international criminal justice are critical in the sense that they involve crucial decisions where members elect among distinct choices in inherently unstable situations. My argument is that crises enable a negative grounding of legal and political jurisdiction that relies on legitimation that is confirmed by judicial bodies. The analysis outlines the institutionalisation of an exceptional legal mechanism in the practice of the International Criminal Tribunal for the former Yugoslavia (ICTY), its proliferation to the International Criminal Tribunal for Rwanda (ICTR) and its normalisation in the International Criminal Court (ICC). The purpose of this analysis is neither to parse what the law is and what it should be—nor what the law does versus what it promises—, but rather to show how and why individual criminal responsibility in the absence of State intervention demonstrates a globalising political power that is conjoined to a universalising legal glory. A crisis is a liminal situation, which by its ambiguity enables that process of power being linked to glory.