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Published online by Cambridge University Press: 07 May 2025
Ever since German and Japanese leaders were prosecuted, convicted, and punished after World War II at Nuremberg and Tokyo, there has been a wide split at the core of the global effort to impose criminal accountability on those who commit crimes against peace, crimes against humanity, and war crimes on behalf of a sovereign state. The law is always expected to push toward consistency of application as a condition of its legitimacy. In the setting of international criminality the greatest danger to widely shared values is posed by those with the greatest power and wealth, and it is precisely these leaders that are least likely to be held responsible or to feel threatened by the prospect of being charged with international crimes. The global pattern of enforcement to date has been one in which the comparatively petty criminals are increasingly held to account while the Mafia bosses escape almost altogether from existing mechanisms of international accountability. Such double standards are too rarely acknowledged in discussions of international criminal law nor are their corrosive effects considered, but once understood, it becomes clear that this pattern seriously compromises the claim that international criminal law is capable of achieving global justice.
I would like to thank Mark Selden for his editorial and substantive contributions this text, and to Ayca Cubukcu for her most thoughtful comments on an initial draft.
1 International Military Tribunal for the Far East: Dissentient judgment of Justice R. B. Pal (Calcutta: Sanyal, 1953).
2 The authorizing resolution of the Security Council seemed limited to providing humanitarian protection to the civilian population of the Libyan city of Benghazi, but was operationally expanded by NATO to include a full-scale military air effort to tip the balance in an internal civil war in favor of the anti-Qaddafi forces. UN Security Council Resolution 1973, 17 March 2011 was officially delimited as establishing a ‘No-FlyZone’ over Libya, although there was accompanying language that should never have been accepted by the five abstaining states to the effect that ‘all necessary measures’ were approved.
3 In Qaddafi's case he was brutally killed by the military forces that captured him in his home town of Sirte on 20 October 2011.
4 Investigative journalism does act as a partial complement to these efforts of citizens’ tribunals. In Vietnam, for instance, Seymour Hersh made a notable contribution by exposing the execution by American military personnel of Vietnamese villagers. See Seymour M. Hersh, Mylai 4: a report on the massacre and its aftermath (New York: Random House, 1970)
5 See Müge Gürsöy Sökmen, ed., World Tribunal on Iraq: making the case against the war (Northhampton, MA: Olive Branch Press, 2008)
6 I have written blog posts on both of these initiatives. Falk, “Israel and Apartheid? Reflections on the Russell Tribunal on Palestine Session in South Africa,” Falk, “Kuala Lumpur War Crimes Tribuanal: Bush and Blair Guilty.”
7 There is a need to clarify what is meant by ‘a jurisprudence of conscience’ beyond the narrow claim of this article that law should treat equally all offenders of norms of international criminal law. It is true that many who subjectively act on the basis of their conscience engage in behavior that from other societal perspectives constitute crimes. For instance, the assassination of doctors who perform abortions by right to life advocates offers one clear illustration.
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