The Politics of International Criminal Law: Unravelling the Constructions of Crime, Criminal Accountability and the Obligation to prosecute International Crimes

Three central concepts that underpin International Criminal Law (ICL) are international crimes, individual criminal accountability and the international obligation of states to prosecute international crimes. These concepts are not merely core legal principles in the field of international criminal justice; they are also normative ideas that animate the operation of ICL. This normative dimension is often neglected by ICL scholars and consequently, important questions surrounding the process of international criminalization has been excluded from the purview of ICL scholarship. This paper introduces three such questions and proposes to examine them from a constructivist International Relations (IR) perspective: Why have states chosen to criminalize certain conduct, and not others, as international crimes? Why have states chosen to attach the locus of criminal accountability for these crimes to individuals? And finally, what impact has this process of international criminalization had on the obligations states have to prosecute international crimes? These questions collectively seek to uncover the normative forces that have informed the process of international criminalization. In doing so, it is informed by the premise that international society’s understandings of crime, criminal accountability and criminal prosecutions at the international level are the result of historically-contingent processes of social construction. There is therefore a story to be told about how and why international society in the 20th century came to criminalize certain conduct as international crimes, made individuals accountable for these crimes and gave states the duty to prosecute perpetrators of these crimes. The paper is guided by the broader aim of critiquing the dominant narrative of ICL. It therefore seeks to show the various ways in which standard ICL texts fail to appreciate the historicity of ICL's fundamental legal concepts. It furthermore seeks to demonstrate how this neglect has contributed to ICL scholars’ inability to account for a crucial dimension of the politics of ICL – the politics that lies behind the social, historical and legal construction of the concepts of crime, criminality and prosecution in the modern international legal order.