The Deal New regulated banks, transportation, and energy among other industries, in the 1930s. In the 1970s, there was a mostly bipartisan effort to reduce regulation in those industries. Although Ronald Reagan is known as the deregulation president, it was Jimmy Carter that started deregulation in each of those industries. Alfred Kahn, whom Carter appointed to lead the Civil Aeronautics Board (CAB), together with recently retired Supreme Court Justice Stephen Breyer, advised Senator Ted Kennedy on how to deregulate airlines. The deregulation of truck, railroad, bus, and transportation, along with natural gas deregulation, followed. Deregulation was based on policy evidence that changes in those industries made it possible to lessen regulation and depend on markets to achieve greater efficiencies. By comparison, Congress decision to reduce regulation of savings and loan banks, based on industry lobbying, ended in disaster as S&Ls failed because of risky behavior and Congress had to bail them out. On balance, the regulation that occurred rebalanced the mix of government and markets in order to achieve a more robust economy.

The Conclusions reflect on the law outlined in Chapters 1−10. They recall that IHL is essentially an attempt to balance two fundamentally contradictory drivers – the need to wage war effectively, and the need to protect people and property from the excessive effects of warfare. It concludes that IHL largely succeeds in this endeavour, and that without IHL life for those caught up in armed conflict would be immeasurably worse. It notes, however, that while the fundamental principles of IHL are enduring, States can and should do more to develop new or more comprehensive laws where there is a need, such as the under-developed law of non-international armed conflict and the lack of regulation of certain weapons.

This chapter introduces a conception of rule that takes resistance rather than obedience as the constitutive element of rule. Based on an eclectic reading of different theories of rule, we argue that there is no rule without resistance. Even though rule might aim at suppressing resistance or might take such a subtle shape that it hardly encounters resistance, conceptually, rule is bound to resistance. Without a minimum of opposition, a recourse to rule would not be necessary. Even legitimate rule, which Weber calls authority, is legitimate only to a certain degree. As a consequence, not only obedience and the will to comply, but also dissent and the will to resist are part of rule. This chapter therefore sheds light on the relational dimension of rule, by analyzing the dynamic relationship between (forms of) rule and (forms of) resistance at the global level. To this end, we distinguish between two forms of resistance – opposition and dissidence – in order to show how resistance and rule implicate and influence each other. To demonstrate this relationship, we discuss four illustrative case studies on state and non-state forms of resistance and how they indicate and influence different forms of rule.

The chapter examines the nature and the main characteristics of arbitral institutions and describes the main features of institutional arbitration. It then illustrates several categories of institutions, distinguishing them on the basis of various criteria. The chapter further describes the functions performed by arbitral institutions with respect to the specific cases submitted to them, their contribution to the making of arbitration law and their role in promoting the knowledge and culture of arbitration. The chapter further examines the notion of "mandatory institutional rules", i.e. rules that institutions do not accept derogations from, and illustrates the conditions for institutions' liability vis à vis the parties and the scope of their immunity in relation to acts and omissions in the performance of their functions under the rules The author concludes that, despite the importance of the functions carried out by institutions, their role does not entail any involvement in adjudicating disputes. The impact of institutions’ decisions on the outcome of cases is indirect, limited to procedural issues or limited to recommendations to arbitrators.

Drawing on the examples of the ICC and ICSID, this chapter shows how international arbitration has successively embraced a ‘relation-based’ and then a ‘rule-based’ model of governance. Initially, the systems of dispute resolution promoted by the ICC and ICSID displayed the features of the relation-based model. The ICC and ICSID sought to promote self-governance by pooling information concerning traders. A related goal was to encourage repeat business by creating an equitable method of dispute settlement that relied, to a large extent, on the participation of its users. The second step came, however, when self-governance failed to sustain cooperation, leading both the ICC and ICSID to promote a rule-based model of governance where third party-arbitrators and arbitral institutions gained increasing powers over the disputing parties. As a final step, arbitral tribunals evolved towards a fully judicialised system of dispute resolution, causing them to increasingly resemble national courts.

Eventually, the first cases before the ICC and the ECCC reached the adjudication stage. Based on a review of the court’s voluminous legal records and in-depth interviews with those involved, this chapter identifies the ICC’s main adjudicative practices regarding reparations. The goal is to understand how reparations were conceived through these practices, and how these practices shaped the reparations outcomes decided by the judges. Chapter 6 examines the first two reparations cases before the ICC, namely the cases concerning Thomas Lubanga and Germain Katanga. In 2012, the ICC delivered its first reparations decision in Lubanga. This decision was amended by the ICC Appeals Chamber in 2015. The account ends with a second reparations decision by the Appeal Chamber in 2019. The second ICC case to reach the reparations phase was Katanga, where a reparations order at first instance was rendered in 2017 and an appeals judgment in 2018.

This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”

The Palestinian Authority defines itself as the State of Palestine and has the outward organs of an independent State. The State of Palestine conducts foreign relations, albeit the Oslo accords prohibited the Palestinian authority from doing so. Some States will not recognise another State if it was created as a result of an illegal action. This may be relevant to the consideration of whether Palestine should be recognised as a State. It is a subject of controversy as to whether the State of Palestine has a sufficiently effective government and defined territory to be considered a State in accordance with classical international law definitions. It can be argued that the large number of States and international organisations that recognise and treat Palestine as a State overcomes such deficiencies. The issue of whether Palestine is, at present, a State remains controversial.

Chapter six grew out of my curiosity about a term that appears in the preamble of the ICC Statute: unimaginable atrocities. If the court is indeed called to fight "unimaginable atrocities," how is it possible that considerable parts of the same statute are devoted to spell out and, in great detail, how these crimes should be defined? The chapter combines my curiosity about the ICC Statute with my questions about the use of film in legal education. Following Shoshana Felman, I argue that the ICC Statute should be read as pointing to the limits of what can be articulated in legal language. The unimaginable or unspeakable cannot, by definition, be captured in legal categories. However, it is possible to suggest what it means for something to be unimaginable. This is where art, including film, can play a role. The biggest part of the chapter is devoted to films that use reenactments to show what it means not to be able to fully articulate and understand historical trauma. The films, I argue, function as a reminder of the importance of the term used in the ICC preamble: the unimaginable atrocities that point to the limits of what law can articulate and achieve.

This brings these findings together and considers what this tells us about the role of archives in international criminal justice and international politics. This reveals a complex picture where the principles and strategies that underpinned knowledge production within the ICTR’s archive shifted over time, from a form of restorative justice to a more strictly retributive model. This also meant a shift from more far-reaching records of violence produced under the witnesses’ influence to a more legalistic record of violence. Over time, the archive, then, less closely reflected the needs and priorities of those affected by the genocide and arguably also produced a more conservative vision of the international community. The chapter also examines the extent to which these dynamics are an inevitable part of international criminal justice,. as a liberal tool of international governance, in part by examining the ICC. This argues that whilst there is little to suggest international criminal justice must necessarily act with such a reductionist view of its function, that these issues continue to underpin current practices of international courts.

In this chapter, I outline how the approach I have can raise new questions, both for ICL and for general criminal law theory.

The study of extreme cases can unsettle and refine our understandings of the principles developed in everyday experience. I will show how studying ICL problems may require us to unpack the roles traditionally played by ‘the State’ in criminal law thinking, and to re-examine many familiar tools of criminal law thought (such as ‘community’, ‘citizenship’ and ‘authority’). The criminal law theory of ICL might draw on ‘cosmopolitanist’ scholarship, which contemplates forms of governance other than the state, and which is therefore particularly challenging for mainstream criminal law thinking.

I will also highlight ‘promising problems’ in ICL. Exploring such problems can help us refine ICL doctrines and also make contributions to mainstream criminal law theory. These include: legality without a legislature; a humanistic account of duress and social roles; and superior orders and state authority. I will then do an even deeper delve into a selected set of controversies in Chapters 6 to 8, in order to demonstrate the method at work and thereby clarify the method, the work it can do, and the themes it raises.

The concluding chapter draws together the key arguments and analysis raised throughout this book It offers some observations on the importance of articulating a legal basis for the ICC’s jurisdiction over nationals of non-States Parties that is grounded in State consent and recognised international legal principles.

Chapter 4 tests the delegation theory by applying it to a number of hypothetical case studies involving actual situations that have been considered by the ICC. Specifically, it uses scenarios that potentially involve procedural immunities to explore whether delegation of jurisdiction provides a legal basis for the ICC’s jurisdiction in different situations that could come before the Court via a State referral or Prosecutor-initiated investigation. The first case study is a hypothetical scenario in which a sitting Head of State from a non-State Party is wanted by the ICC for the commission of crimes on the territory of a State Party. Incumbent Heads of State are immune from prosecution in foreign domestic courts, which raises the question of how States Parties can be said to delegate jurisdiction to the ICC, when the exercise of such jurisdiction would be unlawful in the domestic context. The second and third case studies use the situations in Afghanistan and Palestine, each of which raises potential obstacles relating to curtailed domestic jurisdiction that could affect whether the ICC is able to lawfully prosecute nationals of non-States Parties for crimes committed on those territories.