Table of Contents


Title page

Copyright page




1 Law’s Politics: War Crimes Trials and Political Trials

1 Concepts of the political

2 The politics of ‘politics’ and ‘law’

2 Law’s Place: Internationalism and Localism

1 The Hague or Baghdad: trying Saddam

2 International space/local place

3 Cosmopolitan law?

4 Negotiating the international

3 Law’s Subjects: Individual Responsibility and Collective Guilt

1 Men not abstract entities

2 State crime and individual responsibility

3 The liability of men and things

4 Three Eichmanns

4 Law’s Promise: Punishment, Memory and Dissent

1 Teaching history

2 Proportion

3 Incompatibility

4 Legitimation

5 Discordant notes

6 Forgetting

5 Law’s Anxieties: Show Trials

1 The antithesis of legalism

2 Legality and deformity

3 Objective guilt and subjective innocence

4 Conclusion

6 Law’s Hegemony: The Juridification of War

1 Law and war

2 Juridification in general

3 The juridification of war

4 Some final caveats

7 Law’s Origins: Pirates

1 Infinite justice

2 Enemies of mankind

3 The ambiguities of piracy

4 Enemies of Empire

8 Law’s Fate

Select Bibliography


Title page

This book is dedicated to my mother, Mary Simpson, and to the memory of my father, Gordon Simpson.


This book would have remained unfinished but for the generosity of the LSE Law Department, and, in particular, Chris Greenwood, Hugh Collins and Rob Reiner, the Department’s Convenors during the period when I wrote the bulk of it. In the final stages of writing, Melbourne Law School, at very short notice, and again, gave me the space and support to help me work. Thanks to Jenny Morgan, Tim McCormack and Michael Crommelin.

Deborah Cass, Alejandro Chehtman, Rob Cryer, Sarah Finnan, Jessica Gavron, Tim McCormack, Alexandra Milenov, Bruce Oswald, Vladimir Petrovic, Declan Roche, Philippe Sands, Ruti Teitel, Raynor Thwaites and Jon Turner read extracts from the book and offered wise counsel. Two anonymous reviewers took their jobs very seriously. An American reviewer sent pages of (alarmingly) pertinent insights. I hope he considers this time well spent.

My parents-in-law, Moss and Shirley Cass, housed and fed me for six months in Melbourne at the beginning of 2006. This book, the writing of which had been endlessly deferred, was completed during those months. My wife, Deborah, gave me the time to complete this book at a time when I had no right to ask for it.

My LSE graduate classes have been a joy to teach. The International Criminal Law students from 2000–6 know who they are and will recognize their role in shaping these ideas.

Louise Knight combined patience and persistence as Commissioning Editor. Her assistant, Emma Hutchinson, prepared the ground for submission of the manuscript. Belle Mundy’s assiduous copy editing improved greatly the published version of this book.

A fragment of chapter 1 began its life as ‘Concepts of the Political’, a chapter in The Permanent International Criminal Court: Legal and Policy Issues, eds Dominic McGoldrick, Peter Rowe and Eric Donnelly (Hart Publishing, 2004). The final chapter appears in various truncated forms: as ‘Piracy and the Origins of Enmity’ in Time, History and International Law, eds Matthew Craven, Malgosia Fitzmaurice and Maria Vogiatzi (Nijhoff Publishers, 2006), and as ‘Enemies of Mankind’ in Ethics, Law and Society Volume II, eds J. Gunning and S. Holm (Ashgate, 2006).

This is a book about war. It seems appropriate to note, then, that my grandfather, William ‘Blake’ Simpson, whom I never met, served in the Gordon Highlanders during the Great War. My Dad, Gordon Simpson, was in Singapore, with the RAF, at the end of the Second World War. He died, just before I finished writing this book, in November, 2005.


In the first half of the twentieth century the law of war crimes began to effect a reinvention of international law, and a transformation of argument and discourse around war. This book is about these changes, and, in particular, their intensification at the beginning of the twenty-first century. In the book, I consider the meaning and implications of this development through an examination of the relationship between law, war and crime. The book traces the origins and trajectory of the war crimes field from the outlawing of piracy through to the now common recourse to war crimes trials, and situates these practices in the context of broader social and political forces. The argument is that international law produces a form of displaced politics or conducts politics in a different key. I call this juridified diplomacy (chapter 6): the phenomenon by which conflict about the purpose and shape of international political life (as well as specific disputes in this realm) is translated into legal doctrine or resolved in legal institutions. War crimes trials are one of the institutional manifestations of this phenomenon. More specifically, I argue that the field of war crimes is constituted by a set of relationships – between politics and law; between local justice and cosmopolitan reckoning; between collective guilt and individual responsibility; between making history and performing justice; between legitimating dominant political forces and permitting the expression of dissident views; between the idea of impartial and honourable justice, and the spectre of the war crimes trial as a show trial; between the instinct that war, at worst, is an error, and the conviction that war is a crime; and between projects dedicated to the elimination of ‘enemies of mankind’ through political action and regimes intended to provide for the prosecution and trial of adversaries. These relationships are the law of war crimes (or, international criminal law). Understanding this field requires an understanding of these relationships.

To put this less abstractly, the book is a collection of eight essays on what I take to be the symptomatic aspects of international criminal law, i.e. political trials, hybridity, individual responsibility, history and dissent, show trials (or ‘victor’s justice’), aggression and piracy. These, in turn, each raise a number of questions: What does it mean to talk about war in the language of the criminal law? What are the consequences of seeking to criminalize the conduct of one’s enemies? How did this relatively new convention of trying perpetrators of mass atrocity and defeated enemies come into existence?

The book’s central preoccupation concerns war crimes trials, and the area of study or sphere of practice sometimes known, loosely, as the law of war crimes or international criminal law. It represents a conceptual approach to the area rather than an analysis of its rules (Cassese, 2003a; Kitichaiseree, 2001; Bassiouni, 1986), procedures (Jones and Powles, 2003) or institutional history (Bass, 2000). In the book, I treat the law of war crimes as a discursive field and, perhaps ambitiously, make an argument about the whole field: its suppositions, deformities, proclivities and patterns of thought. This, primarily, is a lawyer’s view of that discursive field (I am concerned with doctrine, text, principles, crime and rule-making in the international system) not, say, a sociology (Cohen, 2000; Fein, 1993; Hirsh, 2003) or a philosophy (Bauman, 1989). Having said that, I take a lawyer’s task to be one of understanding how the law operates and what its effects (political, cultural, historical, social) might be (Shklar, 1964; Arendt, 1994; Osiel, 1997; Mégret, 2002).

Much of this book could be read as a rejoinder to the moral enthusiasms embedded, instrumentalized and institutionalized in the project of international criminal law. This legal order has been indicted as imperial (opening space for the export of liberal or Western norms to other places (Mutua, 1997)) and partial (working against particular groups on the basis of race (e.g. the treatment of Japanese defendants at the Tokyo War Crimes Trials (Prevost, 1992)), ethnicity (the perceived emphasis on Serb defendants at The Hague) or outlaw status (Security Council Resolution 1593 referring Sudan to the International Criminal Court) and gendered (insufficiently attentive to the problem of rape or careless about the kind of collateral damage suffered disproportionately by women (Gardam, 1994).1 There is some of this critique in the book. But, this work is largely directed at identifying structural tendencies in the field, for example the way in which morally culpable behaviour often is understood as psychological or individualized rather than collective or social, or the teleology of war crimes law as an expression of the international over the national, or the field’s self-projections as law against politics or as legalism opposed to show trials. Nothing is closed off by these critiques. The book is not against international criminal law (at its most critical it involves a reading designed to unseat some of that field’s chief complacencies).

I wrote the book in the wake of an extraordinary period in the life of the law. The invasion of Iraq, in March 2003, by a US-led ‘Coalition of the Willing’ convulsed the international community and destabilized political regimes in Madrid, London, Riyadh and elsewhere. Mass opinion was mobilized for and against the war. In anti-war marches in London, banners were held aloft: some declaiming the war as immoral and illegal, others calling for George Bush and Tony Blair to be arraigned as war criminals. International lawyers released legal opinions characterizing the war as unlawful, letters to the newspapers warned the government against embarking on illegal wars, and cases were brought before the courts in which the legality of the war was questioned (Singh and MacDonald, 2002; CND v. Prime Minister, 2002; R v. Jones, 2006). Meanwhile, the Western powers themselves published legal briefs outlining the lawfulness of the war, and insisted that the existing structure of international law permitted invasion (Goldsmith, 2003). After the war various enquiries were held into the quality and use of intelligence on Iraq’s alleged weapons programmes (the Butler Inquiry in the UK), into the media’s sensitivity in reporting the Government’s role in presenting the material (the Hutton Inquiry in the UK) and into corruption and bribery at the heart of the UN’s Oil for Food Programme (the Volker Inquiry at the UN, and the Cole Inquiry in Australia (into kick-backs associated with wheat sales to Iraq)). And, in Iraq itself, the role of law became a central issue in discussions concerning the legitimacy of the post-war occupation, the extent of human rights protections in occupied areas (Al Skeini, 2005) and, most notoriously, the treatment of Iraqi prisoners and detainees at Abu Ghraib. Finally, there was Saddam Hussein. His capture set in train the establishment of a war crimes tribunal under Iraqi jurisdiction that tried the former Iraqi leader for crimes against humanity.2

One of the more remarkable features of this period in some jurisdictions, is the centrality of legal debates and manoeuvrings during it. In anti-war protests at the beginning of, say, the Great War, it is inconceivable that protesters would have referred to the legality of the war. War crimes tribunals were unheard of. Tony Blair has embarked on five wars since becoming the British Prime Minister. In all five cases, trials were regarded as an indispensable part of the post-war peace.3 Something happened, then, to political consciousness in the twentieth century to make law seem more suited to the resolution of international disputes (law) (e.g. Kellogg-Briand, the Hague Conventions of 1899 and 1907) and more attractive as a tool of political retribution (crime) (e.g. Tokyo and Nuremberg) after war. This book is about the consequences of this shift. But the argument is not simply that law has become a natural way of thinking about war and post-war retribution but that this way of thinking has adjusted the relationship between law, crime and politics in international relations.

I develop and elaborate a schema for understanding this rapidly enlarging field, by showing that international criminal law (broadly understood) is constituted by, and properly understood through, a set of dilemmas and relationships. It is neither one thing (e.g. ‘international’) nor the other (e.g. ‘domestic’). The search for single models or unified theories of war crimes law is a fruitless one. Instead, to paraphrase Martin Wight, war crimes law is a field of repetition and recurrence. What repeats and recurs are unresolved arguments about the shape and fate of retributive justice in the international order. Each of the chapters is organized around one of these dilemmas or arguments.

In chapter 1, ‘Law’s Politics’, I consider what people mean when they describe war crimes trials as ‘political trials’ or ascribe political motives to this or that institutional development in the area. This chapter traces a dialectic between the languages and premises of activities designated as ‘legal’ and those characterized as ‘political’. It is about the ways in which certain activities are removed to or aligned with the political and others are shaped and understood through the juridical. Or, to put it differently, I ask how the relationship between law and politics is managed, understood and oriented both in the context of the project to build a permanent international criminal law order and in our retrospectives of the trials that have become the pre-history of this project. The language of politics and law (a language grounded in a sometimes under-theorized split between law and politics) is probably indispensable to the ways in which we, as international criminal lawyers, imagine our field and the place of our own work in it. This chapter, then, describes some of the linguistic tics and rhetorical repetitions that accompany these self-understandings before disentangling what is meant by or what space is occupied by ‘the political’ and ‘the legal’ in the work we do. I look, first, at four standard approaches to the relationship between law and politics. I call these deformed legalism, transcendent legalism, utopian politics and legalistic politics. These patterns of thinking dominate the terrain on which argument within the larger field occurs. Following this, I consider the relationship between law and politics in the context of a recent bout of international institution-building in the criminal field: the establishment of an International Criminal Court. In particular, I consider the concepts of the political that informed this process from the inside.

One of the abiding arguments that constitutes the field of war crimes law concerns where justice ought to be pronounced and how it ought to be performed. In chapter 2, I consider the place of place in the discipline and, in particular, the interminable debates between localists (preferring national trials or domestic proceedings) and internationalists (preferring treaty-based trial mechanisms or Security Council authorized ad hoc tribunals). This is linked, too, to the question of humanity and what it means to act in the name of humanity as opposed to some more particular politics (Teitel, 2002; Simpson, 2004a). I conclude that the system of international criminal law is a hybrid. It is neither truly or exclusively ‘international’ nor entirely derivative of national models of justice. It is rather a particular way of doing law, informed both by cosmopolitan and nationalist inclinations, for which the hybrid tribunal (in Sierra Leone or East Timor) represents a microcosm if not a model. Law’s place, then, is both here and there (Knop, 2000).

Those who argue in favour of internationalist approaches to justice often do so because the scale of the crimes appears to defy a local approach. When the state is criminal, how can it also be the judge of that criminality? One long-standing project in international criminal law is focused on the criminalization of the state. Not everyone, though, concedes that states can be criminal. For many writers, statesmen, and practitioners, states cannot commit crimes. For them, crime is personal and the law of war crimes is a law of individual responsibility (Kelsen, 1973). The state is implicated only inasmuch as it is captured by a ‘gang’ of criminals (to use Churchill’s terms for the Nazis). The history and practice of international criminal law, then, is structured around a dialectic that follows what I take to be our intuitions about accountability, i.e. that it is both social and individual. The subject of chapter 3, ‘Law’s Subjects’, is this dialectic, and the way it plays out in the doctrinal embellishments of war crimes law, its institutional history and its moral and psychological underpinnings.

War crimes trials are a work of memory as well as law. Youk Chhang, director of the documentation centre in Phnom Penh, welcomed the prospect of a Cambodian trial, saying: ‘It will give a lesson to the people of Cambodia: the truth has to be proved in the court-room’ (Gittings, 2001). Law’s promise, then, is that it will deliver both justice and a form of truth. In chapter 4, I discuss the didactic function of war crimes trials (Simpson, 1999; Douglas, 2001), i.e. their capacity to tell a compelling story of human suffering. I set this function against what are often thought of as the limits of the law. These are associated with the problems of proportion (do war crimes explode these limits?), compatibility (are justice and history in harmony during such trials?) and legitimation (are the truths produced by war crimes trials ideologically innocent?) (Farer, 2000; Osiel, 2000). The chapter ends with a brief delineation of themes around the problem of forgetting, and the role of war crimes trials in facilitating the erasure of memory.

A large part of the chapter is dedicated to the question of dissident histories (Simpson, 1997). When Rudolf Hess (whose sanity was questioned throughout the Nuremberg Trials) compared the trial to the Moscow show trials, or when Okawa Shumei (who was declared clinically insane and unfit to stand trial in Tokyo at the International Military Tribunal for the Far East (IMTFE) compared the use of military force by the Japanese in the Co-Prosperity Zone to colonial doctrines of pre-emption, each was engaging, unwittingly, in a form of dissent from the dominant messages of each trial. Here I consider the potential of the judicial form to act as a vehicle for a politics of resistance or dissent. Could it be that war crimes trials, as well as functioning as legitimating mechanisms for dominant ideologies, are unusually suited to the disclosure of alternative histories (e.g. Milosevic’s narrative of Serbian abasement, Speer’s references to Nazi-Soviet collaboration), the assertion of potentially embarrassing political truths (e.g. Saddam Hussein’s intended strategy of revealing the collusion of Western powers in his rule) and the inauguration of new counter-hegemonic legal stories (Justice Pal’s anti-colonial dissenting opinion at Tokyo)? After all, there is a commitment in trial proceedings to an ‘equality of arms’.4 In the optimal cases, prosecution and defence are afforded equivalent legal expertise and allocated equal time for their respective arguments and histories. War crimes trials, then, may be show trials but they are shows for the defence, too (Koskenniemi, 2002). They offer the potential for a politics of dissent expressible through the form of adversarial law.

The erasure of memory reminds us of Stalin’s penchant for re-ordering history through show trials. Advocates and cheer-leaders for war crimes law like to point out that, even if war crimes trials are political trials, they, at least, are not show trials. Defendants and their lawyers, on the other hand, find the show trials defamation irresistible when challenging the legitimacy or constitutionality of a tribunal. In Philip Roth’s Operation Shylock, his novel about the Demjanjuk trial, the author has his Palestinian character, George Ziad, criticize the trial on these grounds: ‘And this explains why there is the show trial of this stupid Ukrainian – to reinforce the cornerstone of Israeli power politics by bolstering the ideology of the victim’ (p. 133). In this passage, Roth has captured something of the tendency, when decrying war crimes trials, to compare them with show trials. Saddam Hussein has described his trial as ‘theatre’, Slobodan Milosevic opened his defence by comparing the indictments to political pamphlets, and Pinochet’s supporters in London sought to undermine the extradition process by characterizing it as something akin to a show trial.

Both sides are referring back, for differing purposes, to the Moscow show trials – regarded by most liberals as the apogee of illiberal judicial politics. Chapter 5, ‘Law’s Anxieties’, is about show trials. Here, I ask whether the assumption by supporters that war crimes trials are the antithesis of show trials is just as complacent as the conflation of the two made by some critics (and defendants at trial). I argue that while the differences are visible and well-rehearsed, the parallels between show trials and war crimes trials are less prominently advertised. I identify some resemblances in procedure, in the ad hoc nature of the tribunals, in the choice of doctrine (in particular charges related to conspiracy or criminal enterprise) and in the selection of defendants. I conclude by giving some attention to Merleau-Ponty’s notion of objective guilt and subjective innocence (Merleau-Ponty, 1969). This pair of concepts seems tailored to horrify the liberal legal conscience but I argue they can illuminate something about the nature of war crimes trials (particularly those associated with defeat in armed struggle). The purpose of the chapter is to demonstrate, first, the repressed affinities between show trials and war crimes trials, and second, that bright-line demarcations between liberal legalism (committed to equality, transparency, and accountability) and illiberal ‘show justice’ (marked by selectivity, secretiveness, and corruption), whatever important work they do at the level of ideology, are analytically unhelpful (Mégret, 2003).

A larger question looms over this whole discussion. Why law? What happens when war takes place through law or under law? Can international politics be conducted in the courtroom? Is this dispute resolution? Blindness? Utopianism? Chapter 6, ‘Law’s Hegemony’, investigates the custom by which political controversy about international affairs is (un)settled through law. In mass protests conducted against the oncoming Great War in Europe in 1914, the protesters spoke of the immorality of the war, its undesirability, and the potentially disastrous impact of the war on working people, on civilization, on culture and on the economy. Politicians, too, railed against their potential adversaries, employing the language of ethics, of brinkmanship, of strategy and of prudence. War was a political or, occasionally, moral phenomenon. In 2003, protesters took to the streets of London with banners proclaiming the war’s immorality, its potential to bring about global catastrophe and its links to rapacious global capitalism (‘a war for oil’). But these protesters were using another language, too. And this language, as I have already indicated, would have been largely unfamiliar to their counterparts in 1914. On banners unfurled at that time, there were slogans declaring the Iraq war illegal and describing Prime Minister Blair and President Bush as war criminals. And these politicians, too, were mounting arguments on the terrain of law and crime. The debate about the legality of the war occupied centre stage for much of the run-up to the war, and there were promises from the Americans and British that Saddam Hussein and his coterie would stand trial for crimes committed in Iraq during his time in power. There was general acceptance on almost all sides that war must be justified in legal terms and that serious violations of war law could result in criminal retribution. The idea of using law for the prevention of, justification for, criminalization of, or in argument about, war, is, in some respects, rather curious and novel. Chapter 6 is about this apparent shift, in war talk, from politics to law and crime. Of course, as I have argued, this is politics in a different style or place. This chapter subjects this displaced politics to a critical examination.

If chapter 6 is about the way political events are given juridical form, then chapter 7 (‘Law’s Origins’) can be viewed as an inversion of this relationship because it concerns the way international law segues into apparently extralegal politics in the form of straightforward retribution, revenge, Great Power prerogative and the establishment of outlawry or pariah status (an under-appreciated aspect of war crimes ‘law’). These ‘alternatives’ to law are continually pressing against law, shaping and misshaping it. In this book, the paradigm instance of extra-legalism is piracy. But while law cannot escape politics but merely reconstitutes it during trial and inquiry, so too, politics re-forms itself into law in the juridical construction of extra-legal space and outlaw identity. Piracy, in a sense, is an amalgamation of the many themes outlined in the book. Piracy is a category around which law and politics coalesce. Pirates are, after all, the original war criminals but they also were the figures who exploded the territorial limits of the law. The repression of piracy involved both an extension of ‘national’ jurisdiction of piracy and, at the same time, the inauguration of ‘international’ criminal law.

Piracy was the first crime in international law to give rise to individual punishment. The Nuremberg war criminals were the descendants of the pirate tradition of hostis humani generis. But piracy or, at least, the figure of the pirate state, provides a way of understanding collective responsibility, too. Germany, following the Great War, provided a paradigmatic instance of piracy in the international order. That state’s removal from the order, and the calamitous and radical punishment inflicted on Germany by that system at Versailles, operate as a precursor for the treatment of other outlaw states later in the century. Law, war and crime recombine through the image of the pirate state and the pirate. At the beginning of the twenty-first century, such enemies of mankind have become symbols of our age.

The topics taken up in these chapters, then, seem to me to be the most important, perhaps defining, relationships that make up the problem of war crimes law. Of course, there are several other matters that I might have usefully taken up. Two, in particular, come to mind. The first concerns the relationship between tort-based responses to mass atrocity, and criminal law remedies. This is a growing issue and one that deserves a more assiduous treatment than I could have afforded it here (Scott, 2001). Second, I have said relatively little about the relationship between law and alternative methods of doing justice or resolving disputes (e.g. truth commissions or interventionary wars (Wheeler, 2000)). There is a compendious literature on transitional justice, of course (Teitel, 2000; Boraine, 2000; Hayner, 2002) but not so much on the specific relationship between the two fields of war crimes trials and truth commissions (Roche, 2005). I regret that this book was unable to develop some of the ideas in this sort of work.

In Sloan Wilson’s Man in the Grey Flannel Suit, Judge Bernstein looks back over his life in law:

How violent Schultz had sounded over the phone. ‘I want justice’ he had said. I wonder how many murders have been committed, and how many wars have been fought with that as its slogan … Justice is a thing that is better to give than to receive, but I am sick of giving it … I think it should be a prerogative of the gods. (Wilson, 2005)

In the end, this book, while concerning itself largely with the elaboration of arguments around war crimes trials, also is a book about justice and evil. I have elaborated very little on that evil in the text itself. There are no descriptions of machete attacks or hell ships. The world is awash with such images. There is an obsession with the Nazis, with genocide and with crimes against humanity in popular culture (on television, in the newspapers). It seems to me to be often unhealthy and prurient. I have no wish to add to it but I do want to say something about ‘evil men’ and what we ought to do with them. It is important to do so because one typical retort to work in this vein is that it over-intellectualizes a simple proposition: evil must not go unpunished. Ralph Lemkin, the Polish jurist who coined the term genocide, is reported to have said: ‘retribution has to be legalised’ (Power, 2002). War crimes law, it is claimed, signals ‘the end of impunity’ for oppressive dictators, abusive functionaries, and murderous soldiers (Roht-Arriaza, 1995).

It seems unarguable that justice ought to be done, and that war crimes law has done much to achieve that end. This book does not seek to prove these propositions wrong but it does foreground some other concerns about the nature of justice and the juridified repression of evil: concerns that, perhaps, ought to figure in the thinking of practitioners and scholars in this field (I include myself among these individuals). First, I place a question mark against a particular sensibility that equates justice with forms or places. It seems morally disfiguring, for example, to believe that justice is a matter of place rather than practice or outcome, or that trial must always trump negotiation or that the collective is guilty but the individual not. Second, I ask whether punishing evil may be a way of advancing damaging political projects (e.g. projects that seek to individualize evils that are structural, or projects that emphasize the role of human agency in war but deny its role in famine or child poverty or deaths due to lack of clean water). Third, I suggest (though this is not a question pursued overtly in the text) that we might ask what is not done when we are busy spending moral capital or political energy on using law to punish evil (e.g. a negotiated peace agreement (Anonymous, 1996) or an $800 million project to provide clean water in Bangladesh).5 Fourth, I confront the problem of equality or generality. Do powerful interests within the international system (interests necessary to advance the war crimes agenda) have any intention of permitting the application of international criminal law to their own citizens or military personnel? If they do not, can the system be more than simply the expression of these interests? Fifth and finally, but not exhaustively, there is the identity of justice and evil. Should reference to such concepts trump the needs of legality or the everyday struggle of political contestation? What happens when we introduce these categories into international political life? Can we be sure we know who the ‘worst of the worst’ are? Can we be certain that the majesty of law can help us with this knowledge? Justice is one of the great virtues, and evil abounds in the world. Yet this book, in recognizing this, also struggles against ‘the certainties of people who claim always to know where good and evil are found’ (Todorov, 2003).

War crimes trials and the law of war crimes are increasingly pervasive features of the aftermath of conflict. This book, then, is an argument about what it might mean to talk about war in the language of law and crime, about the conceptual problems associated with responding to evil through law, and about the compatibility of categories such as crime and individual responsibility with the structure of international society.


1 Security Council Resolution 1593, 31 March 2005.

2 At least one notable paradox of this contemporary scene was the coincidence that has produced on one hand a legalist high-point in the creation of the international criminal court with its aspirations to tame lawlessness in the international order, give teeth to the laws of war and enforce human rights observance, and on the other a renewed existential crisis for international law provoked by the internment of Taliban and al-Qaeda detainees in Guantanamo Bay, the prosecution of an unlawful war against Iraq and the maltreatment of Iraqi detainees at Bagram and Abu Ghraib.

3 The five cases are Sierra Leone (the Special Court for Sierra Leone), Iraq twice (the Iraqi Special Tribunal), Kosovo (the trial of Milosevic at the ICTY) and Afghanistan (the proposed trials of Guantanamo Bay detainees before US Military Commissions).

4 See Prosecutor v. Kayishema and Ruzindana, ICTR 95-1; ICTR 96-10 (Appeals Chamber), 1 June 2001, para. 63–71; Prosecutor v. Tadic, IT-94-1 (Appeals Chamber) (Judgement), 15 July 1999, para. 48 (henceforth Tadic (Judgement)).

5 The International Criminal Tribunal for the Former Yugoslavia costs approximately $90 million a year.