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“These works notably stand among the highest heights of European casting”. This is what Felix von Luschan, the curator of the ethnographic museum in Berlin, wrote in 1919 in his book on the Benin objects. Their looting in 1897 foreshadowed a scramble for cultural colonial objects in the heydays of colonial collecting. Today, they stand at the forefront of discussions on return, including new forms of consent, ownership, or re-appropriation. They constitute a special case and have triggered a novel race for returns. This contribution traces some of the violence and colonial stereotypes underpinning their taking, different perceptions of the objects, and contemporary ethical and legal frames for their return. It argues that the contemporary debate over the Benin Bronzes reflects certain changes in the attitude towards return in general; changes which are grounded in the interplay between justice, ethics, and human rights. It challenges the argument that takings were acceptable according to the standards of the time. At the same time it cautions that the current movement towards return should not turn into a cosmetic ritual of self-purification, which detracts from necessary reforms at the macro level.

Colonial injustice has suffered from the effects of amnesia in international law. Law has served as an instrument to justify injustice in the past and to silence its contemporary effects. The rise of the ‘Black Lives Matter’ movement, TWAIL scholarship and the current debate on racism, slavery and return of cultural colonial objects illustrate the ongoing effects of colonialism. Some seemingly neutral principles and institutions of international law contribute to colonial amnesia. This contribution argues that it is time to revisit this status quo. It draws on emerging case law, scholarship and practices to identify news ways of relational engagement with the past. It suggests a re-reading of three fundamental dimensions of post-colonial engagement with colonial injustice: intertemporality, legal subjectivity and the approach towards cultural colonial objects. It claims that international criminal law has only a modest role in relation to colonial crimes. However, some wider lessons and methods from the field of transitional justice may help to mitigate contemporary dilemmas and contribute to a more post-colonial international law.

Theories of just peace have remained understudied in international law and peace studies. This chapter introduces major themes of the book and traces the role of peace and justice in just peace discourse. It identifies different approaches towards just peace in three fields: just war theory, peacebuilding practice, and transitional justice approaches. It argues that just peace is more than ‘just a peace’, namely a stable peace with justice, but at the same time highly dependent on relational and discursive dimensions. It requires negotiation, recognition, and implementation and involves concession or compromise from parties. It is not only related to form and process, but connected to different dimensions of justice (retributive, procedural, restorative, and distributive justice) which need to be adjusted to the context of transitions from conflict to peace. Peace must be perceived to be fair and just.

The ICTY is usually viewed as a relatively successful example of investigation and prosecution of international crimes. It was born in what many see now as a ‘heroic’ phase of international criminal justice. Throughout its almost two and half decades of existence, it faced many of the existential challenges of international criminal justice, such as selectivity, distance from crimes and victims, uncertainties regarding identity, efficiency and impact, and a complex interrelation with politics. The tribunal has addressed these challenges through constant transformation. It gradually portrayed its own legacy through the lens of dialogue. This contribution introduces main sites and themes of legacy. It shows that legacies derive not only from successes, but also from setbacks and failures.

The chapter sets the International Criminal Tribunal for the former Yugoslavia (ICTY) legacies into a broader context of international criminal justice. It presents different approaches towards the many legacies of the ICTY. The chapter engages with the several phases that the Tribunal has passed, discussing their positive and negative points. It then examines the normative legacy of the ICTY, arguing that, although some gaps exist, the overall record of the ICTY is marked with several normative innovations. The chapter then visits the procedural legacy of the ICTY, in the sense of how the Tribunal made justice heard and seen. Lastly, the chapter discusses the institutional culture of the ICTY and its legacy to other international criminal tribunals. With this analysis, the chapter claims that the ICTY legacies are living beings, which will continue to be transformed throughout the history of international criminal justice.

Expressivist theory suggests that international criminal justice can serve as a means to instil norms and values in international society through communicative justice and persuasion. The chapter demonstrates that contemporary practice shifts between norm expression and norm entrepreneurship. It relates norm expression to the imperfect structure of international law and the performative nature of crimes. It argues that norm expression is partially a counter-performance to crimes. It shows that international criminal justice has captured new space and forms of social behaviour through thematic investigations and prosecutions (e.g. sexual and gender-based violence, child soldiers, cultural property) and legal practice relating to core crimes. It illustrates how legal agents have used rhetoric techniques (e.g. narration, storytelling, and imagery) to reformulate some of the premises of underlying bodies of law (e.g. human rights law, international humanitarian law, and the law of the use of force).

The chapter examines to what extent international criminal proceedings enable discursive justice. It draws on performative theories (e.g. Julie Stone Peters) and semiotics to show that proceedings have symbolic, narrative, didactic, and transformative functions. They involve a stage, a plot, audiences, and scripting. In legal literature, these features are often associated with negative attributes, such as ‘show trials’ in the political sense. However, performance is not necessarily something negative. As Niklas Luhmann has demonstrated, role play, that is, the exercise of certain ascribed or expected roles in proceedings, may have certain positive effects. The chapter demonstrates how different agents in the criminal process (e.g. Prosecution, witnesses, Defence, victims, judges) have used narratives to convey messages to different audiences. It argues that international criminal proceedings encompass more performative, rather than truly discursive elements, due to their adversarial structures.

The chapter demonstrates that the very act of reacting to atrocities, and institutionalization itself, has expressive meaning. Institutions rely on symbolism, rituals, and mimetic practices in order to ensure their own survival. This also applies to international criminal courts and tribunals. Sometimes the ‘medium is the message’. Throughout history, the establishment of institutions has sent different signals, such as memory and remembrance, shame and apology, renewal of community relations, hope and belief or protest. International criminal justice relies on action. Speech act theory is helpful to understand the various meanings of institutional action. Acts, such as jurisdictional determinations (e.g. complementarity), preliminary examinations or investigations, arrests, or cooperation create new narrative subjects, entail commands or incentives for action, or convey attitudes. Outreach and legacy strategies involve strong didactic rationales. They are often more geared towards one-sided expression rather than two-way communication or mutual learning

The origins of expressivism lie in sociology (e.g. Emile Durkheim) and communicative theories of criminal law (e.g. Joel Feinberg, Antony Duff). These ideas have been developed in contemporary criminal law doctrine (e.g. Günther Jakobs, Andrew von Hirsch, Tatjana Hörnle, Claus Roxin), transitional justice (e.g. Mark Osiel, Pablo de Greiff), and international criminal law. The chapter develops a contemporary theory of expressivism. It argues that expressivism is rooted in a communicative cycle between norms as messages, crimes as messages, and judicial responses. This triad provides an explanation for the functioning of expressivism. It can be divided into norm expression and diverse types of agent-related expression. Their application involves different tensions: empirics versus faith, power-related critiques, instrumentalism, and mediation of messages.

The chapter argues that international criminal justice is more a project of accountability rather than a narrow punitive undertaking. The value of international criminal justice lies not necessarily in the severity of punishment or the infliction of ‘just deserts’ but rather in the publicity of the process, the condemnation of crimes, and the establishment of accountability towards a broader community. Expressive punishment is grounded in retributive-expressive justifications, preventive considerations, and restorative rationales, such as messages about equality of victims and offenders. This approach is able to accommodate a more holistic conception of punishment, including alternative sentences or modes of enforcement. Reparations have an important complementary function to punishment. Like punishment itself, they are an imperfect means to acknowledge responsibility, recognize victimhood, or remedy harm caused through crimes. Rather, they help to restore trust about civility and inspire commitment to a social contract among citizens, aimed at preventing future crimes.

This chapter connects expressivism to justice discourse and different dimensions of justice. It claims that expressivism has a more complex role in international criminal justice than publicly admitted. It is a means to reaffirm the purposes and ambitions of the field and to encourage commitment to it, and to enact and perform law. It also provides a more realistic understanding of justice. It views justice not as something ‘objective’ or ‘definitive’ that can be delivered through criminal proceedings, but rather as an intersubjective process that is triggered through messages and communicative relationships: justice is a message.

International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.

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.

Holding bystanders and corporate agents accountable for international crimes is often at the periphery of international criminal justice. Based on its liberal foundations, international criminal law has traditionally been strongly centered on individual agency. In the industrialist cases after World War II, individual criminal responsibility was used to demonstrate and sanction corporate involvement in crime. Ideas of corporate criminal responsibility have been voiced in the post-war era and in the context of the negotiations of the Statute. In recent years, they have witnessed a renaissance in several contexts: the jurisprudence of the Special Tribunal for Lebanon, the Malabo Protocol of the African Union and the Draft Articles of the International law Commission on Crimes Against Humanity. This contribution examines the strengths and weaknesses of individualized and collective approaches towards corporate wrongdoing. It argues that the way forward requires less 'romanticism' and more realism. The appropriate space of corporate criminal responsibility needs to be defined better. The concept is still most developed in domestic jurisdictions. Its role at the international level is likely to remain modest. The main challenge is to develop the interplay between individual and collective responsibility, and to assess more carefully in what areas and in what forums collective responsibility may be pursued best.

The history of international criminal justice bears synergies with classical drama. This contribution investigates the changing anatomy of international criminal justice. It argues that international criminal justice navigates between salvation and apology. It first examines some of the inherent features and cultures that characterize international criminal justice. It then draws on the concept of ‘culture shock’ to explain some of the current dilemmas. It argues that critique is one of the inherent symptoms of an extending ‘accountability culture’.

This article analyzes the relationship between R2P and international criminal justice. Both projects draw on similar foundations, such as ‘sovereignty as responsibility’, a humanity-based defence of international authority and complementarity-oriented response schemes to atrocity crimes. In past years, they have become subject to a number of common criticisms that are typical of other forms of international humanitarianism: application of double standards, assertion of power under the label of human rights and communitarian conceptions of international society or mediation of victims without agency. This contribution draws on an analogy to family law, namely the idea of partnership and marriage, to analyze the status quo of the relationship. It argues that the coupling of these two traditions has not received enough attention in the emergence and treatment of R2P. It shows that it is a ‘marriage’ based on pragmatism and without contract. It investigates existing discourse and interaction problems. It claims that there is a need for greater distinction between R2P and international criminal justice, in order to respect their autonomy and mutual virtues. Integration and mainstreaming carries risks. Both strands of action share partly different goals and methodologies. None of the two should be viewed as a tool at the service of the other. Instead, it is more helpful to develop interaction in specific areas. Synergies exist in relation to specific functions, such as atrocity alert, norm expressivism and compliance. These communalities should be reinforced.

This book is the first targeted work in the legal literature that investigates environmental challenges in the aftermath of conflict. The volume brings together academics, policy-makers, and practitioners from different disciplines to clarify policies and practices of environmental protection and key legal considerations related to normative frameworks (e.g. international environmental law, international humanitarian law, transitional justice, and human rights), the treatment of substantive principles (e.g. proportionality under jus in bello and jus post bellum, environmental integrity), ‘shared responsibility’, and accountability mechanisms for environmental damage. By providing a comprehensive and in-depth analysis of environmental protection and natural resource management during the transition to peace, the volume reveals strong links between the peace-orientation of jus post bellum and environmental principles, such as intergenerational equity and precaution. There is a great deal of work to do to ensure greater protection of the environment before, during, and after conflict. It remains a challenge to align protection with the political interest of states, and the increasing involvement of non-state actors in armed conflict. This volume marks a starting point for an urgently needed space for states, international organizations, and civil society to discuss, and debate conflict and the environment. By engaging with the International Law Commission’s 2016 Draft Principles on the Protection of the Environment in Relation to Armed Conflicts, the volume adds clarity to the law and momentum to the development of the law in this important area.

Protection of the environment and natural resources is a key element in the transition from armed conflict to peace. Most academic studies have focused on classical peacetime or conflict situations. The United Nations Environmental Programme (‘UNEP’) qualified the environment as a ‘silent casualty’ of armed conflict. Exploring the protection of the environment in the aftermath of armed conflict and its relationship to sustainable peace is a relatively novel perspective. This chapter establishes the relationship between jus post bellum and environmental protection. It suggests that jus post bellum (1) provides a lens to view environmental protection as continuum throughout cycles of conflict or conflict transformations; (2) strengthens the argument that concerns of environmental protection are not set aside by armed conflict but relevant throughout conflict and its aftermath; (3) strengthens the case for due diligence of actors beyond armed conflict; and (4) allows a differentiated look at the treatment of harm and remedies.

The Syria crisis marked one of the greatest turns in the history of intervention. In late August and September 2013, military strikes were contemplated in response to the use of chemical weapons on 21 August 2013 against civilians near Damascus. Use of force was averted through an unexpected shift in diplomacy, i.e. Syria’s agreement on the destruction of its chemical weapons and the adoption of a framework for disarmament, compliance and political settlement under Security Council Resolution 2118 (2013). In the discourse on intervention in Syria, it has been argued that the threat of the use of force constitutes a legitimate means to sanction violations of the ban on chemical weapons. This article challenges this assumption. The Syria debate folded criminal justifications into the rhetoric of intervention. Intervention was regarded as a threat and a potential means to achieve rationales of retribution. The author examines justifications invoked in relation to (i) regime accountability (Respondibility to Protect, ‘humanitarian intervention’, ‘protection of civilians’); (ii) the ‘punitive’ and deterrencebased justification of intervention; and (iii) the semantics of ‘aggression’ and (iv) accountability strategies under Resolution 2118 (2013) to argue that use of force cannot and should not serve as a short cut to international justice or as a means of punishment. A new ‘red line’ regarding chemical weapons under Resolution 2118 (2013) should not detract from the need to address other categories of crimes in the Syrian conflict.

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.

This article examines the approach and relationship of the ICRC to International Criminal Law. It argues that the ICRC’s position navigates between normative support, collusion and institutional restraint. The ICRC has shaped some of the foundations of contemporary criminal justice, through its early focus on the implementation of International Humanitarian Law (e.g., through implementation and prosecution of ‘grave breaches) and its role as ‘gentle modernizer’ of the law. But it has at the same time kept a critical distance towards International Criminal Law. Its approach is marked by three cardinal principles: ‘structural independence’, ‘strategic engagement’ and ‘systemic support’. It is grounded in the distinct roles of the ICRC (‘guardianship’, ‘protection’, advocacy and dissemination’) and deeper structural challenges in the relationship between International Humanitarian Law and International Criminal Law. This contribution argues for a re-conceptualization of some of the existing approaches. It claims that it is unhelpful to theorize the relationship between the ICRC and International Criminal Courts and Tribunals (ICCTs) on the basis of the premise that International Humanitarian Law provides a set of ‘primary rules’ that are enforced through criminal institutions, or complemented by ‘secondary rules’ under International Criminal Law (e.g., war crimes law). It may be more appropriate to view the ICRC and ICCTs as part of a polycentric legal system that is built on a plurality of interactive normative structures and governed by certain checks and balances.

The traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable ofThe Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

On 11 June 2010, the first Review Conference of the International Criminal Court (ICC) adopted Resolution RC/Res. 6 on the ‘Crime of Aggression’ by consensus, after years of debates and negotiations in the framework of the Preparatory Commission for the International Criminal Court and the Special Working Group on the Crime of Aggression. The resolution includes a definition of the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to the crime, while making the actual exercise of jurisdiction ‘subject to a decision to be taken after 1 January 2017’ by states parties. This outcome has triggered a broad variety of reactions. The UN praised it as a ‘historic agreement’ and a significant step towards a new ‘age of accountability’. Some non-governmental organizations (NGOs) have expressed concerns that the compromise deepens the gaps between states and leaves accountability loopholes. US legal advisor Harold Koh qualified the compromise as an opportunity for further constructive dialogue and positive engagement with the ICC.