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This contribution re-visits contemporary theorizations and justifications of international criminal justice. It starts with a brief intellectual history and existential doctrinal dilemmas, including the tension between realist and cosmopolitan approaches. It presents four different accounts of international criminal justice (i.e., as a crisis response tool, global governance mechanism, special type of authority and as a field), and their critiques. It then develops a relational theory. Traditionally, international criminal justice is justified based on three main schools of thought: consent-based models (e.g., delegation, social contract), procedural and consequentialist arguments, and expressivist theories. Each of these theories raise difficult justificatory problems, in light of the paradoxes of international criminal law. This contribution suggests that none of these three school suffices to provide a justification for international criminal justice. They must rather be read in a relational way. Each of them operates in relation to different stakeholders and constituencies. International criminal justice as such is a relational project. It engages multiple subjects in the performance of justice, solicits responses to international crimes, promotes answerability and constantly justifies itself through such relations.

International criminal justice has taken a long journey over the past quarter of a century. This essay analyzes this evolution through an analogy to the Greek myth of Daedulus and Icarus. It argues that, similar to the flight in the tale, the journey of international criminal justice is marked by rise and fall and need for re-orientation. It examines some of the major developments and critiques through a contextualization of seven key moments: (i) Tadic 1995: The grounding of the humanist tradition, (ii) Akayesu: New consciousness regarding sexual and gender based violence, (iii) Kristic: The “new law” on genocide, (iv) the Al-Bashir Arrest Warrant: Law vs. Politics, (v) Lubanga: The global victim as constituency, (vi) Charles Taylor: Even-handedness and dilemmas of accessory liability , and (vii) Saif Gaddafi and Al Senussi: The new frontiers of complementarity. It shows that each of them marks an important turning point for modern understandings of international criminal justice. It concludes that like Icarus, international criminal jurisdiction is ill-advised to fly too close to the sun, and too low to the sea.

On 3 March 2015, the Appeals Chamber of the International Criminal Court (ICC) rendered its judgment on the principles and procedures of reparation. The judgment is of systemic significance for international criminal justice, since it establishes a liability regime for reparations that is grounded in the principle of accountability of the convicted person towards victims and the nexus between individual criminal responsibility and the obligation to repair harm. This new ‘principle of liability to remedy harm’ complements the punitive dimensions of ICC justice (e.g., conviction, sentence). It differs from purely civil forms of liability due to its connection to criminal proceedings which requires reconciliation of different interests, namely ‘the rights of victims and the convicted person’. This contribution analyzes the merits and risks of the approach taken by the ICC Appeals Chamber. It argues that the judgment marks significant progress over the Trial Chamber decision, since it increases the expressivist potential of reparations and the prospects of participatory justice. But it also highlights existing tensions in the decision, such as its limited attention to societal frictions created through reparations, and its minimalist approach to non-accountability related objectives of reparation.

Legacy plays an increasing role in the work of international courts and tribunals. But it remains under-theorized as a concept. Court strategies navigate between re-production of the past and societal transformation. Many of the lasting effects of criminal proceedings are not tied to the legal reasoning of judgments, but specific incidents or performative aspects of trials, and their reception. This contribution examines legacy strategies and their critiques. It shows that the turn to legacy is partly an expression of the role of courts as social agents and geared towards the production of ‘global’ legacies. It argues that legacy cannot be construed by institutions, but shifts with perceptions over time. It differentiates different types of legacy: juridified legacy, institutional/systemic legacy, performative legacy, re-productive legacy and receptive legacy. It claims that Court-mandated legacy involves a certain degree of social construction and claims of ownership over the past that sit uncomfortably strategies with the thicker fabric of remembrance and collective memory.

Today, many international criminal lawyers claim that the future of international law is domestic. The example of the United Nations War Crimes Commission (UNWCC) shows that this might not only be the future, but also the past. This article analyzes the practice of the Commission (1943–1948), with a particular emphasis on facts, evidence and interaction with domestic authorities. It argues that the UNWCC marked an early counter-model to the idea of military justice that prevailed in many World War II accountability initiatives, and an alternative to the centralized and situation-specific enforcement model under the umbrella of United Nations (UN) peace maintenance. The Commission represents a cooperative approach to justice and sovereignty that has got lost in the course of the second half of the twentieth century. In the mid-1940s, attention shifted quickly, and perhaps too early from the UNWCC itself to the idea of centralized enforcement under the umbrella of an International Criminal Court. The work of the Commission foreshadows many core dilemmas of contemporary international justice, including debates over independent investigative authority, proprio motu powers, the labelling and origin of core crimes (e.g. aggression, crimes against humanity), the treatment of group criminality (e.g. attribution of conduct) and evidentiary standards in proceedings. Similar structures are gradually re-emerging in the context of regional integration (e.g. ‘mutual trust’ under the European Area of Freedom, Security and Justice) or the operationalization of complementarity under the Rome Statute of the International Criminal Court (ICC). But in terms of cooperation between major powers and use of international expertise and advice in criminal proceedings, international criminal justice is still in search of a modern UNWCC 2.0.

The interaction between fact-finding bodies and international criminal courts and tribunals has been subject to growing attention in past decades. There is a visible trend in UN practice to charge fact-finding missions with mandates involving (quasi-) criminal investigation or the determination of accountability of specific actors (e.g., individuals or groups) for human rights violations. In existing discourse, it is frequently assumed that this increased focus on criminalization supports the prevention or prosecution of atrocity crimes. This chapter re-visits this claim. It argues that the impact and use of the findings of fact-finding bodies for criminal investigations and prosecutions depends on a number of key parameters, namely (i) the nature of fact-finding entities, (ii) the relevant addressee in the criminal process (e.g., Prosecution, Defence, Judges), (iii) the stage of proceedings, (iv) the type of decision, and (v) the nature of evidence. These parameters provide a basis for a more nuanced assessment of institutional interaction that takes into account the different ‘centres of gravity’ of fact-finding and criminal proceedings. Based on analysis of these five parameters, and relevant practice and jurisprudence, it appears misleading to frame the link between external fact-finding and international criminal justice in terms of a natural continuum. It is more appropriate to conceptualize interaction based on a sliding scale. Materials, documents and testimony provided by fact-finding bodies have undisputed relevance to ‘context’-related evidence. They may also support other functions in the criminal process. But they are by no means determinative for the outcome of investigations and prosecutions.

The Syrian crisis illustrates the struggle of international law to cope with responses to violations of fundamental legal norms, including the prohibition of chemical weapons. The Security Council has been blocked over two years, due to an irresponsible use of prerogatives that are out of time. This has created dilemmas of protection. This article examines claims relating to ‘humanitarian intervention’ raised in the Syrian context. It questions whether greater flexibility towards military strikes or an ‘affirmative defense to Article 2(4)’ of the UN Charter offers a proper remedy to deal with this dilemma. It argues that a case-by-case logic, with a differentiated matrix of assessment, provides a more promising way forward than claims for new regulation.

On 13 October 2011 the EU Commission adopted the Agenda for Change (AfC). The AFC stated that EU assistance should focus on two priority areas: (i) Human rights, democracy and other key elements of good governance, and (ii) Inclusive and sustainable growth for human development.This study investigates how the EU and other international actors have treated the nexus between good governance and corruption in policy and practice. It focuses on three core areas specifically that deserve further attention as part of the implementation of the AfC, namely: (i) ‘Corruption and Good Governance’, (ii) Corruption and Human Rights’ and (iii) ‘Corruption and Development’.

One of the most striking features of discussion concerning the legality of strikes against Syria is the mixture of semantics relating to intervention. Vocabularies relating to the use of force have generally been distinct from the realm of International Humanitarian Law and International Criminal Law. The Syria debate folds criminal justifications into the rhetoric of intervention. Intervention is regarded as a means to achieves rationales and objectives of retribution. This essay examines arguments relating to (i) regime accountability under existing doctrines (R2P, 'humanitarian intervention,' 'protection of civilians,' (ii) the ‘punitive’ and deterrence-based justification of intervention, and (iii) the semantics of 'aggression.' It argues that use of force cannot and should not serve as a short-cut to international justice or as a means of punishment.

The concept of justice is essential in this context of human development as well as in the context of cooperation. It plays a central role in the context of ‘human rights, democracy’ and ‘good governance’ which form core foundations of EU development cooperation. This study clarifies the use of the concept in EU cooperation and development practice, and possible strategies for future policies. First, it determines the content and meaning of the notion of ‘justice’, taking into account justice theories and their application in the international context. Second, it examines how the concept is applied in both internal and external European policy, especially in the framework of development and/or to justice. Following these findings, the study examines ‘justice’ strategies in the context of multilateral relationships and in the context of European external programmes, as well as peace-building and transitional justice. It concludes with a set of targeted recommendations.

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive complementarity’. This chapter revisits this categorisation. It argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of Article 17. Both concepts are often misunderstood or used, in order to justify specific policy choices. This chapter argues that forum allocation is governed by three cardinal principles which underpin the functioning of the Rome system of justice: (i) effectivenes, (ii) impartiality and (iii) fairness. It defines means and methods of ‘classical’ complementarity, including its use as a carrot and stick. It challenges the assumption that ‘positive’ complementarity is merely a policy principle or a tool to strengthen domestic jurisdiction. It argues that the Court is empowered to use techniques to overcome ‘inability’ and unwillingness’ as part of its mandate. It claims that the move from a passive to a managerial understanding of complementarity requires greater attention to the foundational goals of the Court, i.e. judicial independence, effective justice, fairness and sustainability.