In March 2023, a year following the Russian attack on Ukraine, the International Criminal Court (ICC) issued a warrant for the arrest of the Russian president Vladimir Putin over alleged war crimes in Ukraine. Putin is accused of the unlawful deportation of children and their unlawful transfer from occupied areas in Ukraine to Russia. The ICC warrant is at least temporarily ending the debate about a new tribunal, instead turning the ICC into the main legal arena to address the criminal responsibility of the Russian leader and the unlawful aggression against Ukraine. Putin is not the first acting president subjected to international criminal law. During the intervention by the North Atlantic Treaty Organization (NATO) in Socialist Federal Republic of Yugoslavia, the International Criminal Tribunal for Former Yugoslavia (ICTY) issued an indictment against the then president of Serbia, Slobodan Milošević. Following the regime change in 2000, Milošević was arrested and extradited to The Hague, where he died before the end of the trial in 2006. Since 1990, over 60 presidents, heads of government, and high state officials have been prosecuted by different – national, hybrid, and international – criminal tribunals and courts, from Saddam Hussein to Augusto Pinochet and Charles Taylor.1 These trials, conducted under what the legal scholar and one of the founders of transitional justice Ruti Teitel calls the “paradigm of global transitional justice”, simultaneously raised high expectations and harsh criticism, comprising a whole set of legal, political, cultural, and historical questions and revealing “multiple paradigms of legitimacy in global order”. 2 The new global order includes a network of tribunals, civil society organizations, professionals, and political bodies, arguably creating what the Australian criminologist Nesam McMillan calls “international space”. This space emerged around the prosecution of specific types of crimes – genocide, crimes against humanity, war crimes, and aggression – with the promise to halt atrocities, deter their commitment, and achieve justice for the victims, simultaneously creating a sense of a larger global community and securing global peace and security. In the book under review, McMillan sets out to explore discursive elements of this project, addressing its historical, cultural, and political trajectories as well as criticizing this romanticized, utopian notion of international space “as a criminal legal sphere in which human interconnection is grounded in the spectacle of extreme suffering as well as a vision of a broader community that is touched or threatened by such criminality and committed to addressing it” (p. 14).
There is hardly a shortage of scholarly literature on emerging international prosecutions, and scholars have examined historical genealogies, tracing their beginnings to the Leipzig and Nuremberg trials 3 and their political and legal consequences and promises of global justice. Perceived as an outcome of the newly constituted subject, which the historian Bruce Mazlish calls “Humanity with capital H”, these legal proceedings appear as a milestone in the emerging global community (p. 2). McMillan enters these debates from a critical, albeit sympathetic, position, employing the post-colonial theory and criticizing the whole project for its disconnection from local contexts and individual lives. According to McMillan, the project follows the universalist (read: Western) perspective on law and justice, based on a simplification of local histories and disregard for the dissonant voices. The book points out this discourse’s limitations, contradictions, and unintended consequences by focusing on the portrayal of international crime and justice and the subjectivities and communities they constitute.
The book is organized into four chapters, preceded by an introduction and followed by a conclusion. The first chapter provides an encounter with the theoretical debates about the idea and constitution of international crime and justice, unpacking the discursive regime within which they are formulated, its ethical possibilities, and its pitfalls. The empirical chapters introduce three case studies: (i) the aftermath of conflict in Rwanda in 1994 and the establishment of the “Rwanda genocide” discourse; (ii) the deliberation of the International Law Commission, established by the UN in 1947, and its attempt to define what is international crime, disconnecting international crime from other crimes like global poverty or environmental harm; and (iii) the portrayal of international justice in the ICC. Each chapter skilfully confronts existing literature with findings from the empirical analysis while offering highly conceptual discussions on identified topics. Despite its rich empirical grounding, the book is primarily a theoretical contribution to the fields of international crime, post-colonial theory, and transitional justice. It poses the most fundamental questions about the discursive construction of global justice, challenging the very foundation of an idealized project grounded in the exceptionality of the international.
McMillan takes a cultural approach to confront the objectivist understanding of international crimes and justice as naturally given and obvious, showing different ways in which they are “socially, politically, historically and legally located and produced” (p. 10). The book brings forth two main arguments. Firstly, the specific discourse on international crime and justice is based on the portrayal of such crimes as something exceptional as they are prosecuted on a larger scale and situated in “the vertical and hierarchical placement” above national crimes and justice (p. 24). Such framing actually creates distance between those who suffer and the public, as crimes are framed primarily as spectacles, “disconnected from the life as it unfolds in the real world” (p. 90). Secondly, discourses about international crime and justice are productive, and the depiction of a crime as international lends a specific political and legal significance to these crimes, creating the international space with its own power dynamics.
Much of the book’s arguments criticize the enthusiastic humanitarian discourses, grounded in the perception of Western omnipotence limited solely by its own disinterest, which no longer holds true. The arrest warrant for Putin is a case in point: the constraints of the global justice project are multifaceted, and sympathetic accounts towards the victims are insufficient in stopping the crimes or achieving justice for the victims. McMillan’s criticism aims at improving rather than destroying the global justice project, hoping to “raise the possibility that such engagement might be grounded, contextual and collaborative” (p. 117). Instead of the idealized discourse about exceptional crimes as a spectacle that objectifies the victims, the global justice project needs to be newly conceptualized from the positions of equality and solidarity. McMillan’s book is an important step in this direction.
1 Ellen Lutz / Caitlin Reiger (ed.), Prosecuting Heads of State. Cambridge/New York 2009.
2 Ruti Teitel, The Law and Politics of Contemporary Transitional Justice, in: Cornell International Law Journal 38 (2005) 3, pp. 837-862.
3 Gary J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, N.J. 2000.