Contesting an International Norm? Individual Criminal Responsibility in World Politics

Dana Silvina Trif, Freie Universität Berlin

Should individuals be punished for international crimes? The answer to this apparently simple, straightforward question has eluded states and policymakers for centuries.Individuals have been convicted for war crimes and crimes against humanity. Two important precedents are the Post-World War II military tribunals of Nuremberg and Tokyo. Yet, despite these initial efforts, individual accountability for international crimes is mostly a late 20th century development. Article 25 of the International Criminal Court Rome remains the clearest codification of individual criminal responsibility to date. The founding members of the ICC hoped to give expression to an international standard of criminal behaviour.

But is this really the case? This project asks an apparently self-evident question: contrary to expectations, It deconstructs the legal status of individual criminal responsibility and show that rather than improving its normative power, institutionalization has increased the intensity of the norm’s contestation. It's argument begins with this perceived discrepancy between legal and social prescriptions. Theoretically, it adopts a constructivist ontology and assumes that norms are socially constructed standards of behaviour. It then goes back to the original question, “ought one to punish?” and argue that: first, the normative disagreements over the Court and its design prove that the international community has not yet reached a consensus on an international standard of criminal behaviour; and second, individual criminal responsibility as currently spelt out by Article 25 is not yet an international norm. This project assesses these hypotheses empirically by looking at historical debates on the issue of individual accountability during four key periods: the 1994 International Law Commission discussions, the Rome debates, US opposition to the Court post-Rome, and the controversy surrounding the issuance of the Al Bashir arrest warrant in 2009.