Bohrer: International Criminal Law’s Millennium of Forgotten History

Ziv Bohrer (Bar-Ilan Univ. – Law) has posted International Criminal Law’s Millennium of Forgotten History (Law and History Review, forthcoming). Here's the abstract:

This article challenges the consensus that International Criminal Law (ICL) was “born” at Nuremberg, exposing ICL’s true history, which spans centuries. Jurists regard pre-WWII cases of penal enforcement of the laws of war (i.e. pre-WWII war crime prosecutions) as unrelated to present-day ICL, because, presumably, these cases are: (1) rare, (2) domestic measures that (3) lack a common doctrine. That is false. ICL’s development, from the late Middle-Ages until WWII, has been grounded on a transnational doctrine which considered as international “outlaws” (punishable by all) violators of the laws of war (war criminals) and of certain additional international laws (from which “crimes against humanity” and “crimes against peace” developed). Remnants of this doctrine are still present in ICL. Penal action against violators was non-negligible and the forums that executed it were not mere domestic organs. After presenting ICL’s centuries-long history and the causes of its pretermission, the article concludes that this forgotten past must be acknowledged. The current narrative falsely depicts ICL as an abnormal system, recently created in violation of basic principles of criminal justice. Furthermore, it encourages the disregard of most ICL cases (those conducted at the State level). Hence, this “false history” leads to unjustifiable questioning of ICL’s legitimacy and effectiveness.