Ashgate Companion Symposium: Drumbl on “The Future of International Criminal Law and Transitional Justice”
Only I never saw another butterfly.
That one was the last one.
Butterflies don’t live here,
In the ghetto.
A teenager, Pavel Friedmann, penned these poignant words while captive in the Terezin ghetto near Prague. Friedmann later perished in a Nazi concentration camp, along with 15,000 other Jewish children from Terezin. Friedmann knew he was being grievously wronged: his poetry makes that clear. But never would he have expected that his tormentors would come to face legal sanction. Moral condemnation, certainly, but courts of morality are for the afterlife. They are not courts of law for the worldly.
Friedmann’s suffering – along with that of millions of others – did motivate the creation of courts of law to condemn Nazi barbarity. These tribunals, principally situated in Nuremberg, were neither global nor permanent. But their work proved foundational.
The International Military Tribunal at Nuremberg (IMT) famously held that: ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ At the time, the IMT meant to dispel the argument made by defendants that they were not guilty because they served merely as powerless cogs in an abstract criminal state. The IMT battled to ensure that personal responsibility would not be obscured by the muck and murk of the anonymity of collective violence.
Over time, however, these words have transcended this minimalist defensive posture. They have come to represent an affirmative normative preference, namely, that the pursuit of post-conflict justice is best served through the selective prosecution and punishment of individual defendants. International criminal law ripples through the imaginative space of post-conflict justice and, thereby, aspires to fill the sullen void of impunity.
The atrocity trial constitutes the primus inter pares of transitional justice mechanisms. It serves as a stabilising beam and corrective antidote to the unprincipled desultoriness and unpredictable vacillation of politics.
To be sure, international criminal law dazzles by dint of its ambition. The claim that courtrooms can distil terribly complex episodes of collective atrocity is a bold one. So too, is the claim that the jailhouse can punish the enemies of all humankind. These tall ambitions, nevertheless, have prompted concrete action. My contribution to this edited volume identifies four major developments in international criminal law, which I describe as: (1) institution-building; (2) remarkable judicial and jurisprudential output; (3) germination of trendsetting and epistemic communities; and (4) crisis management.
Although dazzling, the development of international criminal law also frustrates. In this vein, I posit six challenges for the future: (1) (re-)nationalisation: from technique to context; (2) diversity: from law to justice; (3) scrutiny: from faith to science; (4) truths: from convenience to discomfort; (5) even-handedness: who and what is being prosecuted?; and (6) imagery: from essentialisms to nuance. Ultimately, my contribution posits that international criminal law should recede and international post-conflict justice – a broader paradigm that includes diverse accountability modalities and a more sublime lexicon – should step up.
* This chapter is adapted and updated from a commentary first published as Mark A. Drumbl, ‘International Criminal Law: Taking Stock of a Busy Decade’, in Volume 10 of the Melbourne Journal of International Law (2009). I thank the Melbourne Journal of International Law for permission to do so. Adaptations and updates reflect changes in current events, recent developments, and evolutions in my thinking.
 P Friedmann, ‘The Butterfly’, quoted in H Volavkova (ed) I Never Saw Another Butterfly (US Holocaust Memorial Museum, Schocken Books, 1993).
Source: International Law Grrls