The Politics of International Criminal Justice – A Review

The Palace of Justice, where the Nuremberg Trials were held (Photo: Mark Kersten)

While the International Criminal Court (ICC) is currently celebrating its tenth year anniversary, we still know remarkably little about the Court’s relationship with the international community of states. This is not to say that scholarship has entirely overlooked how states and the ICC get along (or don’t) and why. After all, few issues in the field have received as much attention as the relationship between the ICC and the US. But, as Süddeutsche Zeitung writer Ronen Steinke rightly notes, in The Politics of International Criminal Justice – German Perspectives from Nuremberg to The Hague, that is pretty much where analyses of “[t]he entanglement of international criminal justice with interests of particular State actors” end.

Steinke’s laudable aim is to expand on this literature by examining the peculiar and unique entanglement of Germany with international criminal justice since the end of WWII. This isn’t a well-known story. Indeed, it may come as a surprise to many that Germany was ambivalent, at best, towards international criminal justice following the Nuremberg International Military Tribunal (IMT) trials. As Steinke writes, “in the years after Nuremberg, West German policymakers and legal scholars set out to challenge the authority of the IMT’s narration of the war.” They did so, primarily through a fervent deployment of legal positivism. More specifically, legal scholars and jurists claimed that the Nuremberg tribunals inappropriately applied its jurisdiction retroactively, thus violating the principle that one cannot be tried for a crime that did not exist at the time when it was allegedly perpetrated. They also argued that the selection of cases brought forward at the tribunal did not represent “historical truth”. For these reasons, the trials were largely seen by the German legal community as illegitimate.This attitude remained prevalent until the 1990s, at least in part because “[i]n the 1950s, numerous judges and law professors who had built a career under the Nazis were returning to their former professions” and they were concerned with “their own tainted biographies”.

Since the end of the Cold War, however, Germany has been amongst the most eager proponents of international criminal tribunals as well as the creation of an ICC independent of the political interests of the UN Security Council. It is this political transformation, this volte-face, which has inspired Steinke’s impressive work and should be of interest to all those with an commitment to the politics of international criminal law and justice.

For Steinke, understanding this transformation requires an examination of a confluence of key developments and individuals. The first signs of this conversion occurred following the end of the Cold War, when the West German government viewed the prosecution of East German (GDR) officials as an opportunity to create a historical narrative which delegitimized the GDR regime. The dominance of legal positivism withered and the prosecution of the GDR’s leadership was seen as an opportunity to legitimize German reunification as well as West Germany’s liberation and political take-over of its Eastern counterpart.

With the establishment of the ad hoc tribunals in Rwanda and the former Yugoslavia in the 1990s, Germany warmed up to the idea of international criminal tribunals. According to Steinke, this fact “is highly puzzling from the perspective of realist analysis of the politics of international criminal justice.” After all, what interests did Germany have in Rwanda and especially Yugoslavia? As Steinke points out, Germany had an interest in siding with its three key allies on the UN Security Council – the UK, the US and France, and their particular version of the historical narrative emanating from the Balkans. It also “allowed the newly reunified German State to show itself as a promoter of human rights on the international stage.”

(Photo: UCSB Library Special Collections)

When negotiations on creating a permanent international criminal court began, German diplomats and lawyers took it upon themselves to play a leading role. Steinke’s treatment of Germany’s role in the lead-up of the Rome Conference is particularly rich and worth reading. As he points out, amongst the key factors which propagated German influence in negotiating the creation of the ICC was a single committed individual: Hans-Peter Kaul, to whom the creation of the ICC is highly indebted. According to Steinke, Kaul masterfully convinced “realists” in the German government that the ICC’s principle of complementarity would prevent any German nationals from being prosecuted at the Court and that the Rome Statute would have a restrictive understanding of war crimes which would not create any new legal obligations for the German military. At the same time, as Steinke notes, many skeptics became convinced that the one-state, one-vote system of the ICC’s Assembly of States Parties (ASP) could give Germany a significant degree of political influence at the ICC in nominating individuals for key positions at the Court. In other words, the democratic nature of the ASP could serve Germany’s “realist” political interests.

While Steinke’s analysis of Germany’s role in the creation of the ICC is fascinating and ultimately convincing, the most enjoyable passages come when he shares the rather creative strategies employed by the German delegation to the ICC negotiations. Let me share two.

As a member of the pro-ICC “Like-Minded Group” of states, the German delegation, led by Kaul, not only sought to influence states which might have been inclined to support the creation of an independent Court but to also disrupt those nations which did not. On one unique and rather humorous occasion during the Rome Statute negotiations, Germany pushed itself into a meeting of francophone states, organized by France, in order to weaken its influence:

“France, which never joined the group, tried at one point in Rome to form a caucus of francophone States. Germany’s delegates to the Rome Conference learned of this plan and decided that they, too, qualified as francophone, since seven out of 18 delegates were capable of speaking French. The German delegation then turned up at a francophone meeting in Rome, hosted by France, and addressed the numerous African States assembled there. The German delegation offered Germany’s support to all developing States and emphasized that the important decisions at hand should not be left to the powerful [Permanent 5 members of the UN Security Council]. This appearance naturally infuriated the French delegation and France never came to play a notable part as the leader of a francophone caucus.”

Another such development occurred when Kaul was facing serious resistance from Germany’s Ministry of Defence which was concerned that an independent ICC could drag German soldiers in front of foreign judges in The Hague. According to Steinke,

“Kaul managed to rally the entire Ministry of Foreign Affairs behind his support for an independent ICC with a rather original manoeuvre. In 1997, Kaul penned a journal article that argued emphatically in favour of an ICC Prosecutor with proprio motu powers and invited the Minister of Foreign Affairs, Klaus Kinkel, to publish this article in his name in a renowned German law journal. Kinkel took up the offer. With this policy statement now openly connected to Kinkel’s name, the more skeptical voices within the Ministry of Foreign Affairs, some of whom had initially opposed Kaul’s strong stance in favour of an independent ICC, became quieter.”

The over-arching narrative that Steinke sets out in this book is, in the end, a familiar one: the idealism of liberal internationalism and the realpolitik of realism live side-by-side and find common ground in surprising areas and on surprising issues. Steinke reminds us that Germany’s remarkable transformation in becoming a stalwart of international criminal justice is not a victory of liberal idealism but the result of an “overlap between idealists and power politicians which made the series of policy shifts illustrated in this book.” Moreover, the author admits that “comparable case studies of other States will very likely uncover similar political mechanisms”.

Hans-Peter Kaul, now a Judge at the ICC (Photo: ICC)

A key question, however, remains unanswered: to what extent have the efforts of Germany and others to guarantee an independent ICC been successful? Steinke describes the development of international criminal justice as such:

“What started out in the early 1990s as a new instrument to bolster the powers of the UN Security Council, rapidly turned into an independent entity, in some respects even rivalling the UN Security Council.”

But can it really be said that the ICC is independent from the Security Council? Here, Steinke does not provide us with an answer. While he convincingly depicts Germany’s leadership role in striving to create an ICC independent of the Security Council, recent practice with the referrals of Libya and Darfur to the ICC indicate that the relationship between the ICC and Security Council is deeply problematic. Indeed, in a recent Chatham Meeting on the subject, participants agreed that “[t]he selectivity with which the Council has made referrals has become a significant challenge facing the legitimacy of the Court,” and that “too high a price was being paid [by the ICC] for the conditions for referral which were included in relevant resolutions.”

In the end, Steinke’s work is a significant and important contribution to a literature which remains thin. Importantly, The Politics of International Criminal Justice – German Perspectives from Nuremberg to The Hague is much more than an assessment of Germany’s role and contribution to international criminal law. It is an engaging and eloquent exposition on key developments in the politics of international criminal justice.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Germany, ICTY, International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR), International Law, Nuremberg, Nuremberg Trials and tagged , . Bookmark the permalink.

1 Response to The Politics of International Criminal Justice – A Review

  1. Hi Mark,

    Thanks for a very interesting review of Mr. Steinke’s study. I wanted to take issue with one minor assertion he makes but with the caveat that I am relying entirely on your portrayal of his arguments (in light of time pressure, a paywall, and a bad-enough-as-it-is reading backlog). Specifically, you mention that German support for the 1990s ad hoc tribunals seemed inexplicable in light of the lack of apparent interest the country had in Rwanda “and especially Yugoslavia”, at least beyond supporting UNSC allies and presenting a human rights-friendly image to the world.

    I think this analysis may overlook some significant interests Germany perceived in the Balkans, in particular. Many observers argue that German pressure on Croatia and Bosnia to declare their intention to secede from Yugoslavia (or not) within a very short timeline in exchange for the possibility of EU recognition curtailed the possibility for local leaders to fudge their positions, accelerating and possibly worsening the conflict in both countries (particularly Bosnia). For many observers, such pressure (on the EU to recognize Yugoslav successor states, and on the states themselves to secede) was seen in light of rumors that Germany was tacitly partial in the conflict, reviving a close relationship with Croatia that had extremely unfortunate antecedents from World War II.

    However, the most significant factor for Germany may have been the fact that it took in 350,000 Bosnian refugees in an act of humanitarian generosity that was both striking (in light of the craven maneuvers adopted by other European countries to keep Bosnian refugees out) and politically courageous (in light of the anti-immigration sentiment that was concurrently leading to constitutional amendments to restrict the right of asylum in Germany). As a result, the Germans were generally quite supportive of efforts to negotiate an end to the war and create the conditions for the rapid repatriation of Bosnian refugees, who had only been given revocable temporary protection status rather than open-ended asylum.

    Richard Holbrooke described the German delegation to the Dayton negotiations as single-mindedly pursuing the goal of refugee repatriation, for instance. During the immediate post-conflict period, the Germans almost immediately began deporting Bosnians at a rate that other peace-building actors feared could be destabilizing, and took a strong role in supporting measures inside Bosnia that could make such return sustainable (including counterproductively amateurish moves such as ad hoc agreements with local mayors to fund new housing for returnees that was quickly diverted to local patronage purposes). One of the key barriers to return was the open presence of ‘persons indicted for war crimes’ (who received the cringe-inducing ‘pifwic’ moniker) at return sites; once international forces began seriously engaging in arrests, significant return frequently followed.

    So from the perspective of realpolitik, support for the ICTY in particular may not be so puzzling after all. It may well have been part of a long game to deter the atrocities causing refugee flows and create the conditions for early and sustainable return.

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