Book reviews

Steven Ratner, Jason Abrams & James Bischoff

PUBLISHER: Oxford University Press
ISBN: 9780199546664
PRICE: £95

The role of international law in the modern world is currently the subject of widespread debate, not to say scepticism. Within that broad heading fall a number of well recognised and specialised sub-categories, including international criminal law, international humanitarian law and international human rights law.

Not so long ago, one might hear it said that international criminal law was so unstructured that “you can make it up as you go along”. Matters have moved on rapidly since the end of World War II, to the point where international criminal law is most extensively considered and applied in practice, with the possible exception of international human rights law.

That is largely due to the creation of various ad hoc international criminal tribunals tasked with the adjudication of indictments relating to war crimes and crimes against humanity.

The true worth of any system of law can only be assessed properly by the results achieved in practice, and we are at a stage when we can assess – with experience of cases in practice – what precisely the rules of international criminal law are and what procedures are appropriate for investigating and adjudicating on alleged contraventions of these rules. Only really since the end of World War II has it been generally accepted that individuals should be held to account as criminally responsible for breaches of these rules.

The rapidity of recent developments in this field has been such that a third edition of the highly regarded work of Steven Ratner and Jason Abrams – fully revised and updated as of last year, with the introduction of Jay Bischoff as co-author on this occasion – is a timely and welcome addition to international legal literature. This is a work of value to the academic, the practitioner and the student on account of its comprehensive, cohesive and clear presentation of the subject.

The authors set out in Part IV their conclusions on the prospects that the culture of impunity for human rights atrocities accorded to those responsible, particularly the political and military leaders of the forces involved, can be successfully challenged through the development of the universal recognition and application of a counter-culture of holding individuals accountable for their crimes. In doing so, they recognise both what has been achieved and that much remains to be done. That is followed by 20 appendices setting out the terms of the most significant international instruments bearing on the subject of the book. However, the real meat of the discourse is contained in Parts I, II and III.

In dealing with the substantive law in Part I, the authors paint a comprehensive and detailed picture of the international criminal legal system from three elements: a review of the development of the substantive law and the theoretical considerations applicable; a brief look back over the long and tortuous road that led to recognition of the practical benefits of the doctrine of individual criminal responsibility; and a consideration of the difficulties lying in the way of further development of the system, including continuing uncertainty about the amenability of certain forms of conduct, widely regarded as inhumane, to the jurisdiction of international criminal tribunals. That includes conduct which falls within the political sphere, such as discrimination and apartheid, terrorism and the problems of the definition of the crime of aggression under the Rome Statute.

Part II deals directly with the enforcement of individual criminal responsibility. The authors look initially at the is­sues surrounding, and the aims behind, the policy of holding individuals to account criminally, and the determination of the appropriate mechanism for achieving that objective. They then consider in more detail the primary role of the jurisdiction of domestic legal systems, and thereafter the development from Nuremberg/Tokyo onwards of ad hoc international criminal tribunals and ultimately the International Criminal Court. The roles of the International Court of Justice and regional human rights courts, as well as other non-prosecutorial means of addressing war crimes and crimes against humanity, such as truth and reconciliation commissions, are explored. The whole section ends with a postscript recognising that the aim of securing accountability can be undermined by the absence of uniform standards and international judicial and prosecutorial co-operation. Scottish readers will be interested to note reference to the political manoeuvrings which led to the Lockerbie trial, and to the trial itself, in the context of international co-operation.

For me the highlight of this work was Part III, entitled: “A Case Study: The Atrocities of the Khmer Rouge”. In discrete paragraphs dealing with the events of the killing fields; how the law relating to genocide, crimes against humanity and war crime applies to these events; and the various mechanisms available for bringing home accountability, the authors use this contemporary issue to illustrate what has been done and what continues to be problematic.

The breadth of research that has gone into producing this work is plain on every page, and neatly encapsulated in both the table of authorities from all corners of the globe and the acknowledgment of assistance and guidance from an array of acknowledged international law experts as well as a wide range of dedicated students of the subject. What for me is remarkable is that a work of such academic pedigree and intellectual excellence should be such an eminently readable review of all aspects of individual criminal responsibility and international criminal law past, present and potential.

Lord Bonomy, Senator of the College of Justice; Formerly Judge of the UN International Criminal Tribunal for the Former Yugoslavia.

Suggestions for future books

The Book Review Editor is David J Dickson. Books for review should be sent c/o The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YR