Chapter 3 explores the structure of the international criminal justice field. Specifically, the chapter argues that the community of international criminal law practice, which includes judges, lawyers, academics, non-governmental organizations, and state diplomats, is bound by two core norms, or shared understandings: firstly, that the perpetrators of mass atrocities deserve to be punished (the ‘anti-impunity’ norm), and secondly, that punishment should follow a fair criminal process (the ‘legalism’ norm). Next, Chapter 3 turns to the debates taking place inside the international criminal justice field in relation to questions of individual criminal responsibility. The analysis reveals a variety of competing views on the meaning of criminal responsibility rules, on the requirements of a ‘fair process’, and on the mechanisms for ending impunity for mass atrocities. These clashes of ideas result not only from differences in the professional backgrounds of the persons engaging in international criminal law practice, but also from the lack of agreement on the nature of personal culpability for atrocity crimes and on the function of criminal law in the international society.

Chapter 10 discusses the main findings of this book concerning the politics of international criminal law practice and explores the question whether the norms and practices associated with the assessment of individual criminal responsibility are likely to continue changing in the future. This chapter presents a pluralist understanding of ‘legalism’, as a concept that entertains a range of different visions of international criminal justice. Next, this chapter highlights the importance of understanding the normative dynamics taking place inside the international criminal justice field, namely the battle of different visions of legalism over the construction of criminal responsibility rules, for analysing trial outcomes at the Court. Finally, Chapter 10 observes that it is possible that the restrained approach to criminal responsibility, displayed at the Bemba Appeals Chamber Majority and the Gbagbo and Blé Goudé Trial Chamber Majority, can create a backlash within the international criminal justice community, even if that backlash does not end up prompting reform at the ICC in the short term.

This chapter returns to the main normative claims of the book, by re-engaging, in more depth, the debates around anti-impunity in the law around transitional justice. The chapter offers cultural heritage law as a space where more pragmatic engagement with transitional justice mechanisms is possible and necessary in the law. In doing so, it also engages with the need for pragmatism around cultural heritage, beyond the conservation paradigm, given the malleable nature of the narratives of history, nation, and identity that are made through cultural heritage. It uses the development of memory laws in countries like Poland as a case study of the far-reaching consequences of neglecting the connection between law and memory and cultural identity.

This chapter examines the formation of a new anti-impunity Transnational Legal Order (TLO), its institutionalization, and its consequences. Socio-legal scholarship and recent research on responses to the mass violence unfolding in the Darfur region of Sudan, beginning in 2003, provide insights into strengths and limits of the new anti-impunity TLO. Based on a comparative eight-country study, involving in depth interviews in four social fields (human rights, diplomacy, humanitarian aid, media) and an analysis of 3,387 media reports, I review judicial steps taken on Darfur, conditions supporting them, and their consequences, interpreting them in terms of the transnational legal ordering approach. The case of Darfur shows the anti-impunity TLO at work, displaying it as a force that delegitimizes mass violence. Yet, it also shows impediments to institutionalization in the form of hostile state actors, fields with potentially competing agendas, including diplomacy and humanitarian aid, internal contradictions, and lack of enforcement power. Nation-level forces filter cultural effects of intervention, resulting in diminished concordance between the international and the global realms and across nation states.