Crime: International Criminal Law: A London (Bar) Overview

Impunity and Enforcement: The Enduring Challenge of International Criminal Law

November 1945 marked the start of the Nuremberg trials: a moment when international lawyers and international criminal law (“ICL”) took their place in the existing world order. Whether those involved knew it or not, the International Military Tribunal was just the beginning.

Now more than ever, ICL’s ability to achieve its lofty aims of holding perpetrators to account, deterring future crimes, and providing justice and redress for victims (to name but a few) is being called into question. Is it right that the law itself is simply too puny to fight impunity?

If a state or non-state actor is said to have breached ICL, it is easy to blame the content of the rules for allowing the alleged violations to occur. Standing back, however, it is clear that ICL is no weaker than any other set of legal rules. The difference lies in how it is enforced.

Compliance with ICL requires states themselves to respect and uphold the rules. Therein lies the issue: the system is based on a state’s ability, and willingness, to self-police. Alleged violations occur in the chasm between the rules and their enforcement. Impunity thrives in this no-man’s land.

There is no independent international police force monitoring the conduct of state or non-state actors. UN statements, political debates and NGO reports, are no substitute. Even when the ICC has tried in earnest to intervene and issue arrest warrants for alleged perpetrators of international crimes, these have been largely ignored and mocked.

The law itself may not be puny, but the structures in place to ensure compliance may very well be. While many focus on what more can be done to uphold international law on the world stage through political and diplomatic interventions, there remains a pivotal role for those working in the field at both a grass-roots level before domestic courts and those involved in cases at the international level.

Lawyers specialising in ICL are, in many respects, an independent force seeking to monitor compliance with this body of rules both in their own states and further afield. Their role in holding actors to account for alleged breaches, or defending their right to a fair trial, should not be underestimated. Even a small change can strengthen both the compliance with, and the enforcement of, ICL.

As the world order changes, there will be testing times ahead for ICL and those that work within it. Flashes of this have already been seen and felt. The threat of sanctions against individuals working on certain cases brought into sharp focus the controversies that flow from simply doing a job that has often far-reaching political consequences.

While a great deal has changed since the Nuremberg trials, 80 years on one thing remains the same: the importance of this area of law to the world’s order.