Chapter 6 describes how terrorism is punishable under international criminal law. This body of international law holds natural persons – individuals – criminally responsible for the perpetration of international crimes. Although views differ among scholars, as the chapter describes, the better view is that individual acts of terrorism that do not fall within the definitions of war crimes, crimes against humanity, or genocide are not directly criminalized by international law. Particular attention is paid to the relevant caselaw of the Special Court for Sierra Leone (SCSL) and the International Criminal Tribunal for the former Yugoslavia (ICTY).

This chapter seeks to clarify the criminal responsibility that may be imputable to: (i) programmers of autonomous vehicles for related crimes under national criminal law such as manslaughter and negligent homicide and (ii) programmers of autonomous weapons for related crimes under international criminal law, such as war crimes. The key question is whether programmers could satisfy the actus reus element required for establishing criminal responsibility. The core challenge in answering this question is establishing a causal link between programmers’ conduct and crimes related to autonomous vehicles and autonomous weapons. The chapter proposes responsibility for inherent foreseeable risks associated with the use of AVs and AWs on the basis of programmers’ alleged control of the behavior and/or effects of the autonomous vehicles and autonomous weapons. Establishing the exercise of meaningful human control by programmers over autonomous vehicles and autonomous weapons is crucial to the process of imputing criminal responsibility and bridging a responsibility gap.

This chapter discusses international criminal law (ICL) and distinguishes it from other areas of international law and criminal law. ICL is placed within the general area of international alw and its source doctrine whilst also discussing ICL’s unique nature as an area of criminal law. Critical approaches to ICL are discussed as an increasingly important perspective/approach to shaping debates in ICL.

In this chapter, I introduce the main questions I seek to answer in this book, which are: what gives international courts the authority to punish individuals for international crimes, and under what conditions may courts legitimately exercise that authority? I give an overview of the history of international criminal justice, of my methodological assumptions, and of the arguments I make in the individual chapters.

The present chapter has a two-fold aim. First, it maps the current state of international supervision in the area of international criminal law by looking particularly at the competence of treaty bodies and other non-compliance mechanisms (NCMs), their institutional and operative differences, progressive sophistication, and other developments in recent practice. Secondly, the chapter investigates the features of, and circumstances under which, NCMs established by specific international criminal law instruments are more effective than others in addressing situations of non-compliance and orientating the future actions of States.

The creation of the International Criminal Court (ICC) is a game changer in the relationship between conflict resolution and the pursuit of accountability for mass atrocities. No longer must wars end before international criminal justice is pursued. But the ICC’s forays into situations of ongoing hostilities have not been kind to perceptions of the Court’s role in contributing to peace or in-conflict accountability. Twenty years after its creation, there are signs that the ICC is increasingly reluctant to target individuals engaged in ongoing wars. This chapter illustrates how perceptions of the ICC have been undermined by its forays into active conflicts and how this has resulted in an apparent reluctance to pursue active belligerents. Reflecting on the future of justice in conflict, it also examines what the Court can do to ameliorate perceptions of its impacts on peace and how to build stronger cases against alleged perpetrators involved in active wars.

China’s engagement with international criminal law almost dates back to the creation of the body of law when the Tokyo tribunal was first established; China has followed closely the continuous evolution of international criminal law in various contemporary institutional contexts. Since China has involved itself in the making and development of international criminal law, it no longer views the body of law as subject to the same criticism as some of its aspects dating back to the nineteenth century, but it is not willing to take a step beyond its stance of positive engagement and commit fully to the binding force of international criminal law. This chapter aims to understand the evolving relationship of China with international criminal law, from the substantive issues that have influenced the nature of that relationship to date to the factors relating to China’s interactions with this body of law in the years to come. The chapter seeks to explore how China’s dual identities as both a developing country and a rising great power, which represent different kinds of state interests and preferences, give rise to competing concerns in its relationship with international criminal law.

In this chapter, James Mehigan focuses on the contribution of international criminal law (ICL) to the peaceful settlement of international disputes. More specifically, this chapter looks at the aims of ICL and analyses how effective it has been at achieving its international law and criminal law objectives. It argues that ICL does not make the broader contribution to dispute settlement that many commentators hope for because it provides a form of retributive justice that does not necessarily engender a sense of justice for victims, nor contribute to reconciliation or fact-finding. After looking at the impact of ICL in the Former Yugoslavia, this chapter concludes that there is little evidence to show that ICL achieves any of its aims other than individualising guilt and punishing offenders – in other words, ICL’s contribution to the settlement of international disputes is minimal and should not be overstated.

In national courts, it is generally assumed that local judges are best placed to adjudicate and resolve disputes that arise. This reflects a combination of related concerns surrounding sovereignty, domestic legal expertise and a sociological conception of legitimacy that posits that the judiciary should reflect the society within which it operates. Against this background, the use of foreign judges may be regarded with various degrees of scepticism and alarm. This chapter reflects on these concerns by considering the development and practice of hybrid criminal tribunals. Comprising a combination of both local and foreign judges, hybrid criminal tribunals have been established in several states across the world, including Sierra Leone, Lebanon, Bosnia and Herzegovina, Cambodia, and the Central African Republic. This chapter develops our understanding of comparative judicial practice by exploring the history, justifications and challenges of these unique courts.

This chapter proceeds to the question of the authority of international criminal law. Although there are links between international criminal law and public international law, rooted in the treaty agreements which created the former, the partly compulsory nature of international criminal law sets it apart from other forms of public international law. Accordingly, this chapter focuses on the way in which the Rome Statute’s jurisdiction, as its primary exercise of power, and, potentially, authority are set out in the treaty and how this may affect its authority. As its jurisdictional provisions also permit the UNSC to make referrals to the Court, where a situation threatens international peace and security, the question of this power going beyond ‘typical’ jurisdictional powers is discussed in the context of power politics. This will allow an exploration of the mechanism as a legitimate exercise of power.

The final substantive discussion looks at the idea of authority rooted in both justice and rights, discussing the development of international criminal justice alongside the human rights movement, and the way in which the justification for following such rules in rooted in an understanding of the rules serving the international population, particularly those vulnerable to atrocity crimes and victims of previous crimes. It examines the implications for a theory of authority based on rights for areas such as positive complementarity and UNSC referrals, and how these areas may need to adjust to conform to an understanding of authority which supports the legitimate exercise of power in this area. As is frequently noted, the Court’s main aim is to end impunity. If this is truly the case, it should move towards a complete approach to complementarity. This completeness should involve the generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.

Much has been written about the legitimacy of international criminal law and the International Criminal Court. The underlying problem of what would constitute legitimacy or authority for the Court is rarely explored. This work seeks to deal with the issue by exploring the concept of authority and seeking to provide a theory of authority of international criminal law. The overarching intention of the work is to contribute to a more focused debate on the reasons for the Court’s perceived and actual lack of legitimacy.

The work concludes by drawing together the threads of the theory of authority, demonstrating its quiet controversy and undermining its conceptualisation as an archaic aspect of jurisprudence. It is aimed to demonstrate the significant implications that a failure to adequately understand and set out the authority of institutions in international criminal law could have. The question of legitimacy is redundant should there be no exploration of authority, and thus the initial discussion, which demonstrated the link between authority and legitimacy, provided a foundation for the discussion of, effectively, whether exercises of power in international criminal law can be viewed as legitimate.

This chapter begins to shape the theory of authority posited by this book, by exploring the way in which the authority of international criminal law is rooted in both justice and rights, exploring the development of international criminal justice in parallel with the human rights movement, and the way in which both have sought to serve victims of abuse. It also explores the way in which a reliance on State consent as the source of authority can undermine the authority of international criminal law. This argument is underpinned using Third World Approaches to International Law (TWAIL) scholarship, which offers the opportunity to move away from the Euro- and State-centric approach to international criminal law and encourages a greater focus on domestic prosecution. The discussion engages with what this complete approach should comprise, exploring the impact of generalised support for domestic prosecutions to ensure that its exercises of power are truly legitimate.