My new EJIL article on the Rise of International Criminal Law

I have a new essay just published yesterday in the European Journal of International Law, titled (if link doesn't work and you still want the piece, email me and I'll send it that way):

The Rise of International Criminal Law: Intended and Unintended Consequences.
(EJIL, Vol. 20, No. 2, pp. 331-358, June 2009.)

EJIL is a subscriber wall Oxford UP journal, but I’m allowed to put up a link to the full text here on my personal website. If you’d like to read it, this link is supposed to work to the full text.

Abstract:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

I want to thank EJIL editor and old friend Joe Weiler for commissioning this essay - and then running it when it turned out to be a somewhat strange piece for EJIL. It draws on my personal experience regarding the early days of the then-proposed ICTY, among other things. It is a fast, impressionistic overview of ways in which the emerging system of tribunals might be thought to “crowd out” other parts of public international law. It ranges really, really widely, as the table of contents shows:

• Regimes of mutual benefit and regimes of altruism
• Alternative to intervention?
• Earning the moral right to administer universal justice
• Reprisal and reciprocity in the laws of armed conflict
• The rise of the machines
• Individual liability and the loss of the laws of war as rules for the social organization of war between groups
• Does anyone ‘own’ the rules of war anymore?
• An end-run around the P-5?
• Neglecting the UN?

Everything from battlefield robots to the P-5 ... no lack of topics here in a short space. Although I think it will drive some readers crazy, and for a good reason - it takes the punchbowl of each topic away just as the party gets going - I do like it, and I think once in a while it is useful to have a high altitude survey that seeks to reveal something about changes to the landscape below. That’s the intent, anyway.