Hunter, Emily --- "From Nuremberg to the Hague: Establishing the Legitimacy of International Legality" [2014] UNSWLawJlStuS 8; (2014) UNSWLJ Student Series No 14-08

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FROM NUREMBERG TO THE HAGUE: ESTABLISHING THE LEGITIMACY OF INTERNATIONAL LEGALITY

EMILY HUNTER

International Law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind.^[1]

-Sir Hartley Shawcross, Closing Speeches, Nuremberg Trial

INTRODUCTION

The atrocities of World War II catalysed an unprecedented move in international criminal justice: in Nuremberg, the Allied Powers united to establish the International Military Tribunal, ‘the IMT’, an international court where certain members of the Third Reich could be brought to judgement. The actions of the Tribunal have often been criticised as reflecting a victor’s justice, that is, imposition of the victor’s law on the defeated. It has been argued that the IMT retroactively applied novel crimes on the defendants, an action that categorically undermines traditional principles of legality. Nevertheless, the horrors of war prompted an immediate reaction, as the world demanded condemnation of the Nazi crimes. A new form of legal order emerged almost overnight. The trials at Nuremberg may be described as the birth of international criminal justice. With this in mind, it is clear that its jurisprudence is also nascent. Just as the trial itself was a radical change in established legal practice, traditional jurisprudence may require substantial restructuring. Although it has been argued that the Tribunal’s actions were an assault on the sovereignty of the nation state and contrary to principles of legality, it is the aim of this paper to reject such assertions in order to dispel the similar jurisprudential criticisms that are directed at the International Criminal Court, ‘the ICC’.

This paper will begin by investigating the perceived deficiencies in the legitimacy of the Nuremberg Trials. Such an analysis will be useful in demonstrating how these challenges have ultimately been overcome with the establishment of the ICC. The development of the concept of the rule of law will then be explored in order to gain an appreciation of the dynamic nature of the concept. Exposition of its normative basis will lead to a discussion of sovereignty. While parallels are often drawn between national law and the individual subject, and international law and the nation-state, this analogy is fundamentally incorrect and may underlie the difficulties in appreciating the legitimacy of international jurisprudence. Instead, in resolving international law’s legitimacy, we must appreciate that individuals are ultimately its subjects and that the rule of law exists to advance individual liberty. This paper will conclude by proposing a new formulation of the rule of law based on a universal understanding of fundamental human rights in advocating for the legitimacy of the ICC.

NUREMBERG: THE NAISSANCE OF INTERNATIONAL CRIMINAL LAW

The IMT was established to bring to judgment a number of powerful military and political figures of the Third Reich. The Tribunal was a collaborative effort between the United States, Russia, France and Great Britain and was the first notable instance of a truly international criminal trial. The crimes of the Holocaust required legal action despite unparalleled practical and doctrinal challenges. In his opening address, Justice Robert Jackson, Chief Prosecutor for the United States, remarked:

This tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories... The common sense of mankind demands that law... must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.^[2]

Justice Jackson recognized and dismissed the jurisprudential challenges faced by the Court. His comment introduces a theme that will be prevalent throughout this argument: it must be understood that the common sense of mankind is the impetus in international criminal action. The Nuremberg Trials confirmed collective understanding of the existence of fundamental human rights and it is in accepting this collective understanding that we may understand the legitimacy of the Trials. Justice Jackson’s justification for the Trials was simple: humanity trumps legalism. The brutality of the war necessitated a swift and severe response. Nevertheless, scholars remain committed to solving the legal quandary. Ironically, as Professor David Fraser notes, “much of the Nuremberg Trial, both in the prosecution’s arguments and in the judgment of the International Military Tribunal itself, was spent establishing not the illegitimacy of Nazi legality but the legitimacy of international legality”.^[3] The concern for legitimacy is no doubt precipitated by the establishment of the ICC, a court plagued by similar jurisprudential weaknesses. Nuremberg is the starting point of international criminal jurisprudence and any attempt at establishing the legitimacy of the ICC is best informed by a close examination of the challenges faced by the court at Nuremberg.

The predominant criticism that emerges from an analysis of the law at Nuremberg is its alleged use of ex post facto law. Article 6 of the Charter of the IMT^[4] defined the crimes that fell under the jurisdiction of the Tribunal and included definitions for war crimes and crimes against humanity. These two crimes also form part of the ‘core’ crimes prosecuted in the ICC. War crimes, defined broadly in the Charter as ‘violations of the laws or customs of war’, was not generally a source of criticism. It was the establishment of crimes against humanity that was to be the foundation of many of the jurisprudential difficulties of the Tribunal. The crime is defined as follows:

namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.^[5]

This offence was criticized as capturing a residual category of crimes, introduced to expand the ICC’s jurisdiction to include acts that did not fall under the established category of the former crime.^[5] The definitions of the two offences were overlapping and delineation of one from the other was not clear. It is argued that the imposition of this charge on the German defendants was inconsistent with fundamental precepts of the rule of law, namely the requirement of clarity and the principle of non-retroactivity. The latter principle, described in the Latin maxim, nullum crimen, nulla poena sine praevia lege poenali posits that there shall be no crime and no punishment without a pre-existing law. These principles rest on the assumption that law’s deterrent effect arises from its rational and knowable character.^[6] Neglect of such principles may amount to abandonment of the rule of law. Further consideration of this argument will be expounded later in this paper.

LEGITIMACY AND HUMAN RIGHTS

Sévane Garibian posits that there are two groups of scholars who answered this question of legitimacy: those who assert that the Charter is the expression of pre-existing legal norms or those who argue that, in light of the atrocities of the Second World War, a breach of the principle of legality is justified.^[7] As this paper is attempting to demonstrate that we may in fact reconcile international criminal courts with principles of legality, the latter camp will not be explored further.

A ‘Crystallized Conscience’ and Morality

Perhaps the most prominent theory for legitimacy and the one promulgated by the Tribunal itself, is that the Charter of the IMT is “the repository of the crystallized conscience of mankind”.^[8] As the repository of the human conscience, the Charter created legal obligations out of moral duties. Austrian legal philosopher, Hans Kelsen is supportive of this development. Kelsen identifies deficiencies in the criticism that the Nuremberg Trials applied ex post facto law. He notes that the rule against retroactive legislation is really a principle of justice, designed to prevent the law from being applied to persons who did not know of its existence when they violated it.^[9] He then notes that the rule is not universal. For example, it is not applied in situations where the new law is favourable to the accused or in situations where the new law is created by precedent: the rule may be legitimately sacrificed in certain situations. Where two principles of justice conflict, he submits that the higher of the two prevails. In the context of Nuremberg, the acts in question were “morally most objectionable”^[10] and the persons committing them “were certainly aware of their immoral character”.^[11] On this basis, he posits that the law condemning these acts cannot be considered as incompatible with justice. He concludes that the accepted principle that ‘ignorance of the law is no excuse’ prevails over the principle ‘the law must be known in order to be applicable’.^[12] Attributing legal responsibility to those committing such acts is more important than respecting the rule against ex post facto law, a rule which is subject to many exceptions. Kelsen distinguishes between retroactive norms which make punishable acts which are innocent from those which are immoral at the moment of its commission. As the acts committed by the Nazis indicted at Nuremberg were certainly of the latter category, retroactivity is justified. Kelsen justifies a breach of the principle that ‘ignorance of the law is no excuse’ by explaining that the perpetrators of the Nazi offences knew the acts were contrary to morality. He impliedly suggests that acts so contrary to morality cannot be legal. The Charter of the IMT crystallized patent moral responsibilities into legal requirements.^[13]

B ‘Core’ Crimes, Universal Norms and Human Rights

It is argued that the ‘core’ crimes articulated in the Charter of the IMT may be characterized as jus cogens, that is to say they form peremptory norms of international law.^[14] The concept was described in the Vienna Convention on the Law of Treaties.^[15] Article 53 holds that an international treaty is void where it conflicts with ‘a peremptory norm of general international law’. A peremptory norm is defined as one “accepted and recognized by the international community of States as a whole.”^[16] The ‘core’ crimes are said to fall under this category. One of Nuremberg’s principal developments therefore is that scholars began to draw a distinction between ‘core’ international crimes (such as those prosecuted at Nuremberg and currently prosecuted at the ICC) and other international crimes (such as piracy and slavery). These ‘core’ crimes are divorced from the general body of crime and the offences are afforded a special status. Relevantly the status is derived from acceptance and recognition by the international community...as a whole. With this in mind, we may discuss Nuremberg as the starting point in the broader recognition of fundamental human rights.

In an article written during the Nuremberg Trial, American lawyer Nathan April stated, “The sixty-odd ‘sovereigns’ live in a state of international anarchy; nothing binds them other than some rather faint intimations from the categorical imperative- plus a lively respect both for the war-potential of their neighbors, and the aftermath of reprisal.”^[17] While April’s statement may have been true at the time, it is no longer true today. It may be said that concern for international war or interests of retribution inspired the creation of the IMT, however, in the détente that followed, a new form of legal discourse emerged. The Trials exposed a tension between those defending the authority of the State and those in favour of the protection of human rights. The Trials at Nuremberg demonstrated that the international community was not prepared to tolerate certain individual action even if it was sanctioned by that individual’s nation state. Erosion of the formerly sacrosanct doctrines of immunity and sovereignty was gaining acceptance.^[18] The international community demonstrated recognition of the human entitlement to certain inalienable rights and willingness to intervene in situation where these rights were in jeopardy. It is clear that Nuremberg is the starting point in contemporary human rights discourse. As trenchantly stated by Nigel Rodley:

The principles of Nuremberg were not only the victory of justice over the intolerable fiction of the unassailable state, as well as an affirmation of the supremacy of a higher positive law; they were also the base upon which a positive international law of human rights could be built, namely, the identification of duties for those sharing in the exercise of power to respect, at least to a minimal extent, the dignity of those subject to that power.^[19]

The legal response to the crimes of the Second World War represented the inauguration of a new international legal order. The significance of Nuremberg therefore is that it obliterated the boundaries of criminal law, confirmed limits on state sovereignty, and forever altered the relationship between national and international legal structures. Scholars begin to rationalize the erosion of the principles of nullum crimen and the relationship between law and morality was beginning to be explored in depth. As stated by Bruce Broomhall, the principles developed at Nuremberg reflect, “...a new relationship between the individual, the State, and the international community based on an awareness that national interdependence and industrialized warfare created new exigencies and demanded new and stronger safeguards for the stability of international life”.^[20] This comment is indicative of Nuremberg’s influence in shifting relationships between the individual, the state and the international community and foreshadows the normative shift in jurisprudence that is also required.

THE RULE OF LAW AND SOVEREIGNTY

The concept of the rule of law will be explored to demonstrate that the popular formulation of the concept is applicable only in the national context and cannot be extrapolated to international law. The normative basis of the discipline will be examined in order to suggest the possibility of a new formulation that may assist in establishing the legitimacy of international criminal law.

A Traditional Rule of Law Doctrine

The phrase, ‘the rule of law’, was coined by A.V. Dicey^[21] in his 1885 work, Introduction to the Study of the Law of the Constitution.^[22] The Diceyan formulation rested on three main principles: that men should be ruled by law, not by arbitrary power;^[23] that individuals and officials are equal before the law;^[24] and that courts provide the best avenue for adjudication of the rights of private persons.^[25] It may be argued that the Diceyan rule of law is committed to ensuring that individuals are not subject to abusive acts of sovereign power. It follows that legal subjects are free to do anything that is not explicitly forbidden. Dicey’s rule of law rationalizes centralized decision-making by empowering the individual to have confidence in the impartiality and the uniform-application of the law, while requiring law-makers to respect the individual’s right to know the law. The United Nations offers a similar definition: “a principle of governance in which all persons... including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”^[26] Stéphane Beaulac theorizes that the rule of law is not merely a political or jurisprudential theory, rather it is an activity in itself. He suggests that the rule of law has played a leading role in creating and transforming reality, namely in ‘modelling the shared consciousness of society’.^[27] The rule of law may be understood as an activity whereby the validity of the law is justified. While this concept is useful in a vertical power structure where there is one body responsible for creating, implementing and enforcing law, it has limited utility in the international context. Unlike national sovereigns, there is no central world government. Kelsen stated, “...in contrast to technically well develop legal orders, it does not possess central organs specializing in making and executing law.”^[28] In the national sphere, rule of law doctrine advocating formal requirements assists in justifying the sovereign entity’s exclusive right to law making and enforcement. International law such as the law governing the IMT and the ICC, is not formed by a sovereign power, but rather reflects a cooperative effort across many nations. The activity of justifying centralized decision-making is not necessary in international law.

B A New Formulation

Ian Hurd notes that the legitimacy of law “...matters since it affects the decision calculus of actors with respect to compliance and empowers the symbols of the institution...”^[29] The latter point is apposite. He asserts that the legitimacy and the efficacy of the legal system are mutually re-enforcing. In contrast, a lawless state may “disempower ordinary citizens, making them fearful to think or speak out and breeding cynicism and passivity.”^[30] As discussed above, Dicey’s rule of law assists in establishing legitimacy in a national context. Though this formulation does not assist in establishing international law’s legitimacy, an analysis of its normative basis may prove useful. The concept has been understood as comprising formal and substantive requirements.^[31] Formal attributes include the requirement that the law be known and clear. Substantive requirements consider the content of the law and impose elements such as morality and justice. While many legal and political scholars adopt a positivist approach to rule of law discipline in advocating the supremacy of the formal requirements, it may be suggested that a divisive analysis is not useful for our purposes. Lon Fuller advances a system based on procedural justice and fairness, stating that the act of governance by law requires “...a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults. Every departure from the principles of law’s inner morality is an affront to man’s dignity as a responsible agent.”^[32] Fuller’s rule of law is committed to the autonomy of its subject. It exists to ensure a stable environment in which its subject may operate freely. It contemplates man’s ability to understand the legality of his or her actions and to assume liability in the event of a departure. Perhaps a more useful (albeit basic) formulation of the rule of law is one which has primary regard for the autonomy of its subjects and the sacrosanct nature of human dignity.

C Sovereignty and the Correct Legal Subject

From the outset, it should be accepted that the constitution of international law is fundamentally different to that of national order. As stated above, rule of law doctrine contemplates the autonomy of its subjects and exists to provide a stable environment in which subjects may operate without fear of persecution. Through implementation of restraint on government, the rights of the individual are secured. But how might this principle operate in the international sphere where there is no central entity creating, imposing and enforcing law? It is a question that is only beginning to be explored.^[33]

It is common that an analogy is drawn between national law and the individual, and international law and the nation state. This precipitates the argument that the nation state should be afforded the same rule of law protection as the individual under national law. This analogy is incorrect and should be dismissed. It is this form of reasoning that fosters the tensions in reconciling the legitimacy of international law. The correct approach, as foreshadowed in the epigram, is to regard the human being as the ultimate unit of all law.

The rule of law may be said to exist to advance individual liberty. Under a national rule of law system, there is a presumption in favour of individual freedom: everything is permitted that is not forbidden.^[34] If the State is considered the subject of international law, the weaknesses of this analogy become apparent. This would suggest that the nation state is free to enjoy anything that is not forbidden by international law. Ambiguity, which is inevitable in any legal order, is exacerbated on the international scale and would be resolved in favour of the state. This effectively nullifies the overarching purpose of the rule of law discipline stated above. As noted by Professor Jeremy Waldron, ‘liberty’ does not have the same inherent value when applied to the nation state.^[35] It is the individual who is vulnerable and seeks protection by rule of law doctrine. Rule of law doctrine simply cannot be applied in securing freedom of action of a national sovereign. Rule of law concerns are inspired by a concern for the well-being of the individual whether at a national or an international level.

THE INTERNATIONAL CRIMINAL COURT: A NEW FORM OF JUSTICE

The International Criminal Court is a permanent international tribunal established by the enactment of the Rome Statute^[36] on 1 July 2002. The Court is situated in The Hague, Netherlands but proceedings may take place anywhere. Article 5 of the Rome Statute^[37] grants the Court jurisdiction over core crimes including crimes against humanity and war crimes. The Court’s jurisdiction is triggered where the accused is a national of a State party to the Rome Statute; the alleged criminal act took place on State party territory,^[38] the event is referred by the United Nations Security Council or where a State accepts the court’s jurisdiction.^[39] It exercises complementary jurisdiction,^[40] acting only where national courts are unwilling or are unable to bring proceedings. As stated above, international law by nature is perceived to be in tension with state sovereignty. It has been described as “...an edifice built on a volcano- state sovereignty”.^[41] Nevertheless the complementary nature of the ICC’s jurisdiction is designed to respect state sovereignty. Although the interest of the Court is triggered by occurrence of the alleged criminal act, the Court respects the State’s right to determine the culpability and punishment of their nationals. The complementarity and cooperative regime of the ICC’s jurisdiction enables human rights protection for the core crimes of the Court, while maintaining respect for national legal orders.

Steven Roach states that the problems of legitimacy in international affairs arise from the “anarchical nature of the international system, in which states remain in competition with one another.”^[42] He resolves issues of jurisdiction stating “...states that ratify the ICC Treaty...delegate some of their juridical authority to the ICC”.^[43] It may be accepted that, a sovereign State, in ratifying the Rome Statute, ultimately delegates its authority in respect of the core crimes. Therefore the international system and sovereignty should not be perceived as antithetical. In fact, surrender of state authority to the international court may be perceived as an exercise of state sovereignty in itself.

One of the criticisms levelled on the Rome Statute is that the crimes and the rules of procedure and evidence are not sufficiently detailed to ensure legality.^[44] This echoes the claims of nullum crimen directed at the IMT at Nuremburg. However, as stated by legal positivist, HLA Hart, “...laws are incurably incomplete”.^[45] It is clear that the ICC considers only the gravest crimes affecting humankind. While a formalistic approach to the rule of law may be preferred in the national arena, this may be due to the bilateral relationship existing between the law–maker and its subject. In contrast, a substantive approach to the rule of law may be preferred in the international sphere. Unlike national law, the law of the ICC rests on the recognition of a substantive value set. The ICC was formed in view of defending a basic set of human rights and imposes obligations on its subjects accordingly. Waldron asks the question, ‘who needs the protection of the [rule of law] in the international sphere’?^[46] In reconciling the legitimacy of the ICC, it is better to consider that the rule of law exists for individuals. Its purpose is to secure individual dignity and liberty. If we understand the rule of law in such a way, then perhaps the doctrine may be applied to international law in different manner. The rule of law internationally may tolerate relaxation of its formal requirements if it remains in pursuit of its substantive objectives, namely securing individual dignity or liberty. If human dignity forms the normative basis for the rule of law, the pursuit of human rights in the international sphere is indeed compatible.

Acts such as ratification of the Rome Statute and acceptance of the ICC’s jurisdiction reflect a State’s desire to be accepted in the larger international community. This may be understood using the ‘social contract’ theory advanced by Jean-Jacques Rousseau, Immanuel Kant and John Rawls among others. States voluntarily sacrifice an element of their freedom (jurisdiction, in this case) in order to secure the protection of other rights and participate in a broader community. Yet there remains a fundamental flaw in the legitimacy of the ICC- the Court does not retain the ability to prosecute nationals of non-state parties without external consent. Although the Statute has been ratified by 122 nation states,^[47] there are a few notable absentees (the United States for example). Perhaps under the ‘social contract’ theory, we may contemplate a day when a state’s interest in participation in the international community leads to acceptance of the Rome Statute.

CONCLUSION

The process of development and ratification of the Rome Statute demonstrates a shared international desire to give a legal basis to a democratic “World State” where affronts to certain fundamental individual rights will not be tolerated. Samantha Besson distinguishes between a moral duty to obey law from a legal duty, “Moral duties to obey the law qua law ought to be carefully distinguished from moral duties to obey the law because its content is moral, on one hand and from legal duties to obey the law, on the other.”^[48] Besson advocates that obedience to the law derives from its normative legitimacy. This paper speculates whether through international criminal law and the recognition of certain core crimes, the “World State” has effectively crystallized moral norms into legal norms. Once this is achieved we may truly say that the ICC has established normative legitimacy.

In her examination of international law, Sévane Garibian posits that “...the norms of international law arise in response to needs, rather than anticipating them”.^[49] While this is true of the Nuremberg Trials and the ad hoc tribunals established after the Rwandan and Yugoslavian tragedies, the same cannot be said of the ICC. Unlike the IMT and the ad hoc tribunals, the ICC was established after long processes of deliberation. The creation of the ICC may be the starting point of a new, legitimate form of international criminal law. With its inception, we may contemplate the legitimacy of international legality on a more permanent basis. Unlike the vertical relationship that exists between an individual and the sovereign state, the international law of Nuremberg and the ICC reflects a horizontal partnership among nations, with private individuals as subjects beneath it. It is formed in recognition of humankind as a collective, each unit bearing certain inalienable rights. As stated by Garibian, “International law is the imperfect result of ‘the instincts of justice and humanity that are the common heritage of all civilised nations’”.^[50] As an institution, the ICC reflects the value of shared membership of an international political and social community. Although its pluralistic nature naturally presents challenges, a focus on safeguarding human dignity as the basis of legal legitimacy will undoubtedly foster the development of a new international citizenship based on tolerance, respect and prosperity.

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^[1] Sir Hartley Shawcross, Closing Speeches in F. B. Schick, ‘The Nuremberg Trial and the International Law of the Future (1947) 41(4) The American Journal of International Law 770, 786.

^[2] Robert H. Jackson, ‘Opening Statement before the International Military Tribunal’ (Speech delivered 21 November 1945) <http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/> , viewed 1 May 2014.

^[3] David Fraser, Law after Auschwitz: Towards a Jurisprudence of the Holocaust (Carolina Academic Press, Durham, 2005) 125.

^[4] Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, 82 UNTS 279 (entered into force 8 August 1945) Article 6.

^[5] Ibid.

^[5] Cameron Charles Russell, ‘The Chapeau of Crimes Against Humanity: The Impact of the Rome Statute of the International Criminal Court’ (2011-2012) 8 Eyes on the ICC 25, 33.

^[6] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 26.

^[7] Sévane Garibian, ‘Crimes against humanity and international legality in legal theory after Nuremberg’ (2007) 9(1) Journal of Genocide Research 93, 94-5.

^[8] William Elfred Jackson, ‘Putting the Law of Nuremberg to Work’ (1947) 25(4) Foreign Affairs 550, 564.

^[9] Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1(2) The International Law Quarterly 153, 164.

^[10] Ibid 165.

^[11] Ibid.

^[12] Ibid.

^[13] Sévane Garibian, ‘Crimes against humanity and international legality in legal theory after Nuremberg’ (2007) 9(1) Journal of Genocide Research 93, 100.

^[14] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 41.

^[15] Vienna Convention on the Law of Treaties, opened for signature 22 May 1969, 1155 UNTS 331 (entered into force 23 May 1969).

^[16] Vienna Convention on the Law of Treaties Article 53.

^[17] Nathan April, ‘An Inquiry into the Juridical Basis for the Nuernberg War Crimes Trial” (1946) 30(5) Minnesota Law Review 311, 328.

^[18] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 42.

^[19] Nigel S. Rodley, ‘Impunity and Human Rights’ in Christopher C. Joyner (ed) ‘Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference, 17-21 September 1998 (1998)’ 14 Nouvelles Etudes Penales 71, 73-4.

^[20] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 19.

^[21] Ibid 3.

^[22] A.V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, London, 10^th ed, 1885).

^[23] Ibid 188.

^[24] Ibid 193.

^[25] Ibid 195-6.

^[26] United Nations Security Council, ‘The rule of law and transitional justice in conflict and post-conflict societies’ (Report of the Secretary-General, S/2004/616, United Nations Security Council, 23 August 2004) 4.

^[27] Stéphane Beaulac, ‘An Inquiry into the International Rule of Law’ (EUI Max Weber Programme Series Working Paper, No. 2007/14, 17 December 2007) 1.

^[28] Sévane Garibian, ‘Crimes against humanity and international legality in legal theory after Nuremberg’ (2007) 9(1) Journal of Genocide Research 93, 95.

^[29] Ian Hurd, After Anarchy (Princeton University Press, New Haven, 2007) 12.

^[30] Naomi Roht-Arriaza (ed), Impunity and Human Rights in International Law and Practice (Oxford University Press, New York, 1995) 4.

^[31] Paul Craig, ‘Formal and Substantive Conception of the Rule of Law: An Analytical Framework’ (1997) Public Law 467, 473.

^[32] Lon Fuller, The Morality of Law (Yale University Press, New Haven, 2^nd ed, 1969) 162.

^[33] B.Z. Tamanaha, On the Rule of Law – History, Politics, Theory (Cambridge: Cambridge University Press, 2004) 127.

^[34] Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ 22(2) The European Journal of International Law 315, 338.

^[35] Ibid 322-328.

^[36] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

^[37] Rome Statute Article 5.

^[38] Rome Statute Article 12.

^[39] Rome Statute Article 13.

^[40] Rome Statute Article 1.

^[41] H. G. Niemeyer, ‘Einstweilige Verfugungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen’ in Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 60.

^[42] Steven C. Roach, ‘Legitimising Negotiated Justice: the International Criminal Court and Flexible Governance’ (2013) 17 (5-6) The International Journal of Human Rights 619, 621.

^[43] Ibid.

^[44] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford University Press, New York, 2003) 26.

^[45] HLA Hart, Essays in Jurisprudence and Philosophy (Clarendon Press, Oxford, 1983).

^[46] Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’ 22(2) The European Journal of International Law 315, 325.

^[47] International Criminal Court, Frequently Asked Questions International Criminal Court <http://icc-cpi.int/en_menus/icc/about%20the%20court/frequently%20asked%20questions/Pages/4.aspx> .

^[48] Samantha Besson, ‘The Authority of International Law: Lifting the State Veil’ [2009] SydLawRw 14; (2009) 31(3) Sydney Law Review 343, 343.

^[49] Sévane Garibian, ‘Crimes against humanity and international legality in legal theory after Nuremberg’ (2007) 9(1) Journal of Genocide Research 93, 95.

^[50] Ibid 96.