Abstract
International war crimes trials are normative pursuits par excellence; they are understandably deeply emotional affairs, as a result of the horrors and injustices that lead to their establishment. Since these trials emerge from political decisions, the fundamental challenge in international criminal law has been to try to conduct judicial proceedings uncontaminated by passion and politics. Contemporary legalism, inspired by democratic peace theory, argues that liberal polities are more likely to establish international war crimes tribunals than illiberal polities, and posits that these liberal courts are more likely to be driven by a commitment to due process. I argue that reliance on legalism (as a political theory) is misplaced: not only have illiberal states participated in the establishment of war crimes courts, but legalist claims obscure the fact that many proceedings have been marred by significant due process deficiencies. The U.S.-as the archetypically liberal legalist state-has not accepted to be held to the norms and institutional constraints emerging from institutions of international criminal justice that it has shaped and promoted. I begin to develop an approach that I call Kantian realism, which holds that states should only establish norms and institutions that they would willingly decree upon themselves.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.