Description
The US is often portrayed as a global leader in justice and accountability for atrocity crimes. The Nuremberg Trials, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for the Former Rwanda are just a few examples where the US played a leadership role in ensuring that those most responsible for humanity’s greatest crimes were held to account. Nevertheless, ensuring accountability for international crimes perpetrated by their own military and civilian leaders has remained a notably lacklustre affair. Perhaps one of the lowest moments of the Trump Administration, was when it attacked the International Criminal Court (ICC), and ventured to sanction key staff members of the ICC in ways ordinarily reserved for international terrorists and criminals. It brought into question the role of US leadership not only in 2020, but in previous Administrations to not only prevent atrocities, but to take a truly universal approach to global norms outlined in the UN Charter and the Nuremberg Principles (adopted by the UNGA unanimously). Moreover, it sharpened the unique inaction in the domestic US legal system to pursue accountability: particularly, for those international crimes regarded as peremptory norms (jus cogens) of international law, such as torture and genocide. While less likely to attack the ICC, it is unlikely that a Biden/Harris Administration will fundamentally change the US’s inaction in criminal accountability for its own, despite global norms and legal obligations to do so.
This paper proposes a way out of the deadlock. It draws on previous case studies of criminal accountability pursued by non-state actors and state legal officials in foreign courts. In particular, it shows how victims and witnesses of international crimes, particularly those in the so-called ‘Global South’, have led criminal accountability against those most responsible. This serves as a counter-narrative to the notion that only Western actors care about (and pursue) criminal accountability, including at the ICC; as well as to the notion that witnesses and victims of international crimes are only ever passive actors in global accountability. It proposes a theoretical framework to explain these actors, and why they matter. Drawing on notions of community of practice in international relations, international criminal law as practice, and ‘standards’ and the ‘international rule of law’ in legal theory, it proposes an interdisciplinary theory to solving the problem of accountability. The theory explains how and why these actors take the practical steps necessary to extend the reach of international criminal law, and, in doing so, hold powerful actors to account.
