Chapter 3 explores the structure of the international criminal justice field. Specifically, the chapter argues that the community of international criminal law practice, which includes judges, lawyers, academics, non-governmental organizations, and state diplomats, is bound by two core norms, or shared understandings: firstly, that the perpetrators of mass atrocities deserve to be punished (the ‘anti-impunity’ norm), and secondly, that punishment should follow a fair criminal process (the ‘legalism’ norm). Next, Chapter 3 turns to the debates taking place inside the international criminal justice field in relation to questions of individual criminal responsibility. The analysis reveals a variety of competing views on the meaning of criminal responsibility rules, on the requirements of a ‘fair process’, and on the mechanisms for ending impunity for mass atrocities. These clashes of ideas result not only from differences in the professional backgrounds of the persons engaging in international criminal law practice, but also from the lack of agreement on the nature of personal culpability for atrocity crimes and on the function of criminal law in the international society.

Chapter 2 positions the book within the interdisciplinary literature on international law and develops its theoretical framework and the concept of intersubjective legalism, borrowing insights from ‘practice’ studies. The research framework builds upon the works of Kratochwil, Brunnée and Toope, and Johnstone, situating the meaning of legal rules within the ‘community of practice’ of international law, which enforces a set of shared understandings about what constitutes sound legal reasoning. Next, Chapter 2 integrates insights from critical legal studies and sociological studies of the juridical field to elucidate the power inequalities shaping interactions inside the community of legal practice. The centrality of expert knowledge as a source of power inside the juridical field suggests a reordering of the traditional perception of international politics: Inside the community of international legal practice states lose their central position, and actors such as judges, legal scholars, and non-governmental organizations gain leverage. The framework presented in Chapter 2 enables the investigation of the politics of the legal field, which take the form of competition over the authority to determine the meaning of legal rules. Finally, this chapter discusses the methods of analysis, namely discourse analysis and interviews.

In this chapter Germany’s position on Antarctica, the law of the sea, as well as air and space law will be examined. Concerning the law of the sea, Germany’s critical position on China’s maritime claims in the South China Sea, expressed on many different occasions, will be addressed. Besides that, it will be addressed that Turkey accused Germany of illegally boarding its merchant vessel on the high seas in the Mediterranean. Yet, it will be concluded the boarding and search of the vessel even against the expressed will of Turkey was not illegal under international law. Regarding Turkey’s conduct of seismic surveys in the eastern Mediterranean, Germany’s calls on Turkey to respect international law will be criticised as lacking a legal basis. That Germany joined the UK-led Global Ocean Alliance, will be evaluated as a way for Germany to lobby for greater parts of the ocean being assigned Marine Protected Area status. In the last part, Germany opposing Russian initiatives on the prevention of the placement of weapons in outer space will be assessed a sign of its increasing frustration with the double standards displayed by Russia and the other major space powers.

This chapter deals with Germany’s position on State jurisdiction and immunities. The first part, Jurisdiction of the State, addresses Germany releasing an Iranian citizen in a prisoner swap, as well as Germany considering further US sanctions on Nord Stream 2, a pipeline project delivering gas from Russia to Germany, an encroachment on its sovereignty as it understands them to be extraterritorial in nature. The second part, State immunity, deals with the Federal Constitutional Court classifying Greek debt restructuring measures as acta iure imperii. While the chapter agrees with the decision, it criticizes the Federal Constitutional Court for missing the opportunity to advance the discussion of a contentious matter of public international law. Another article assesses Germany’s (non)participation in US court proceedings for alleged colonial genocide and enslavement of the Ovaherero and Nama in what was formerly known as South West Africa and is now Namibia. The chapter argues that Germany is not answerable and that Namibia’s position in its negotiations with the German government over a political declaration concerning atrocities committed during colonial rule was weakened.

Chapter 6 argues that the competition for delivering an authoritative interpretation of the criminal responsibility provisions in Article 25(3), Article 28, and Article 30 Rome Statute continued when the International Criminal Court (ICC) began operation. This chapter shows that the interpretation of Article 25(3) should be understood not only as an indication of the growing influence of civil law norms, as has been often suggested in the legal literature, but also with respect to other important overlapping factors, namely the growing dissatisfaction with joint criminal enterprise and the novel institutional environment of the ICC. Next, Chapter 6 observes that the ICC judges have interpreted in a very restrained manner Article 28 and Article 30, perhaps going beyond the intentions of the Rome Statute drafters. This chapter provides a comprehensive analysis of the (re)construction of criminal responsibility rules at the ICC over a period of 15 years, including recent developments, which took place in 2020–2021 in the Yekatom and Ngaïssona, Abd-Al-Rahman and Said cases, thus highlighting the dynamic nature of international criminal law norms.

Chapter 1 situates Responsibility on Trial within the existing interdisciplinary literature on international criminal justice and presents the research aims of the book. Chapter 1 highlights a gap in the existing literature: international criminal law norms are generally treated either as objective and static standards that are independent from states’ political interests (the ‘liberal-legalist’ thesis), or, conversely, as inevitably indeterminate concepts that enable the perpetuation of global structural inequalities (the ‘critical’ thesis). While both perspectives provide important insights into the operation of international criminal justice, they fail to examine the dynamic nature of legal norms as vehicles for both continuity and change in the field and the implications of those dynamics for the assessment of individual criminal responsibility for mass atrocities. To address this gap, Chapter 1 borrows insights from the work of Shklar and Kirchheimer and proposes building an ‘intersubjective’ framework of analysis that recognizes law’s inherent normativity not as an objective fact but as a form of social practice.

The chapter covers Germany’s perspective on the use of force, armed conflict and international humanitarian law, and arms control and disarmament. The first part addresses Germany’s position on the US killing of Iranian General Soleimani, Germany condemning Iranian missile attacks on US bases in Iraq and Germany refining the right of sustainable self-defence. The second part shows the German Federal Court of Justice reaffirming that there is no justification in international law for attacks by the Kurdistan Worker’s Party, the German government’s stand on foreign troop presence in Syria, Germany’s stand on the law of occupation regarding US forces in Syria, Germany considering Israeli settlement activities in the Occupied Palestinian Territories illegal, Germany’s view on drones, the Federal Constitutional Court affirming only States can claim compensation for violations of international humanitarian law, and the Federal Administrative Court ruling the US may continue to use its base in Germany. The third part covers Germany’s criticism of US anti-personnel landmine policy and Germany’s condemnation of North Korean missile tests.

This chapter is concerned with Germany’s stand on State responsibility and liability. It is found that Germany mistakenly attributed acts by the Houthi rebels to the State of Yemen and mistakenly assumed that the Houthi rebels are bound by Yemen’s international human rights obligations under the International Covenant on Civil and Political Rights. Further, Germany’s position that Russia is responsible for the use of a chemical weapon in the poisoning of Alexei Nawalny will be addressed. It will be argued that Germany should have cooperated directly with Russia rather than only calling the Organisation for the Prohibition of Chemical Weapons. Concerning the Federal Parliament’s Scientific Research Services’ assessment on claims against China for damages incurred due to the COVID-19 Pandemic, it will be argued that the only conclusion to be drawn from the report is that legal actions against China must be doomed to failure. Finally, the question will be raised whether Malta apologising for a Maltese ambassador who compared the German Chancellor to Hitler forms a rare example of a formal State apology.

Chapter 4 argues that the nascent community of international criminal law practice coalesced around the judgments issued by the International Military Tribunal (IMT) in Nuremberg and International Military Tribunal for the Far East (IMTFE) in Tokyo after the end of the Second World War. The United Nations (UN) tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), established in the 1990s, significantly developed the legal rules regulating the attribution of individual criminal responsibility for mass atrocities, further consolidating the international criminal justice field. Chapter 4 argues that, from the perspective of intersubjective legalism, both the post-Second World War tribunals and the UN tribunals displayed sound legal reasoning in the assessment of criminal responsibility for two reasons: Firstly, they followed a consistent normative logic, namely that morality was the animating force behind legality. Secondly, many judges and outside legal commentators shared that normative logic. Nevertheless, over time the UN tribunals polarized the international criminal justice community of practice on questions concerning the scope and requirements of criminal responsibility rules.

This chapter deals with Germany’s perspective on and activities in the United Nations and other international organisations. The first part deals with Germany’s involvement in a UN Security Council reform, Germany failing to integrate climate security into the work of the Security Council and Germany’s position that the UN headquarters must be accessible to all member States. Germany’s take on Security Council Resolution 2510 (2020) will be criticised. It will be assessed why Germany opposes the US interpretation of Security Council Resolution 2331 (2015). Germany’s position on civil society briefers to the Security Council, Germany accusing Russia and China of obstructing the implementation of resolutions, Germany’s difficulties as chair of the Libya Sanctions Committee, Germany’s membership of the Economic and Social Council and criticism against Germany for its handling of the Afghanistan file in the UN General Assembly is also addressed. Russia’s and China’s criticism of the German Security Council membership and reviews of the German membership will also be examined. The second part encompasses Germany’s position on youth participation in international organisations.

Chapter 8 explores the legal and political dilemmas arising from the assessment of individual criminal responsibility in two ICC cases, which ended in acquittals: Bemba and Gbagbo and Blé Goudé. The analysis focuses on the battles of ideas inside the legal field, situating those dynamics within the broader international political context of the Bemba and Gbagbo and Blé Goudé trials. This chapter offers an illustration of the distinctive and predominant line of legal reasoning at the ICC, a line of legal reasoning that prioritizes the quality of the process through the narrow application of the modes of liability and the meticulous assessment of evidence, all regardless of the trial outcome. The chapter concludes that the Bemba Appeals Chamber Majority and Gbagbo and Blé Goudé Trial Chamber Majority have adopted an internal shared understanding about the role of the court in the international society, according to which procedural excellence upholds the integrity of the liberal system of criminal justice and provides an antidote to the false information dominating the modern political world. Nevertheless, the restrained approach to the assessment of criminal responsibility has been contested by dissenting judges, non-governmental organizations, and legal experts.