Of the thousands of works on international criminal justice written since the 1990s, Law, Politics and the Limits of Prosecuting Mass Atrocity attempts to provide a novel view of the phenomenon by examining international prosecutors’ activities from the perspective of a critical thinker. While applying critical theory to explain certain political and legal realities is certainly not a novel approach, and the study of international prosecutors’ work has been explored,Footnote ¹ examining the prosecution of international crimes through the lens of critical theory seems like a valuable contribution to the debate on the interrelation of law and politics as manifestation of a dominant social group’s interests. A political science scholar from New Zealand’s Massey University, Damien Rogers has an ambition to study the work of the so-called ‘three generations’ of international prosecutors (those involved in, respectively, the Nuremberg and Tokyo trials, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and finally, the International Criminal Court (ICC)). The author draws on Michel Foucault in the aspiration of constructing an argument that better explains the selectivity of international criminal justice by ‘offering a critique à la Karl Marx and Immanuel Kant’.Footnote ² Discourse analysis is chosen to examine the evolution of international criminal justice from the codification of certain conduct, such as genocide, war crimes or crimes against humanity, to the actual prosecution of mass atrocities, which, from the author’s point of view, ‘becomes a particular form of modernist world politics’.Footnote ³ According to this view, prosecutors ‘help wage a mostly silent and largely unacknowledged war’, ‘serving the interests of economic liberalization’.Footnote ⁴

One of the key arguments summarized in the introduction is that people who commit abhorrent crimes (‘acts of politico-cruelty’, in the author’s terms), are ‘denounced as hostis humani generis (enemy of mankind)’,Footnote ⁵ which in turn is ‘something of a legal fiction subject to those who control legal interpretations and deploy power according to hegemonic values and interests’.Footnote ⁶ Rogers organizes his research chronologically by first exploring political and other factors leading to the establishment of the post-Second World War tribunals and then looking into the prosecutors’ opening statements at Nuremberg and Tokyo as manifestations of ‘a contest between proponents of neo-capitalism and non-liberal utopian movements’.Footnote ⁷ In the following chapters, he covers the period of the 1990s and the process of establishment of the United Nations ad hoc tribunals (ICTY and ICTR), ending with the process leading up to the creation of the permanent ICC. In this way, the author seeks to first present the context in which certain prosecutorial decisions were made before going on to examine the actual steps of the tribunals’ prosecutors, ‘articulated through indictments, warrants, summonses and opening statements’.Footnote ⁸ Throughout the book, he tries to prove that the prosecutors acted as agents of ‘victors’ justice’ (at Nuremberg and Tokyo), ‘hegemon’s justice’ (at the ICTY and ICTR), and ‘victims’ justice’ (at the ICC), informed and inspired by the neo-liberal ideology within the framework of a ‘politico-cultural civil war’.Footnote ⁹

Even though it is not clear why the author chose not to include other institutions in his research (like the quasi-international tribunals established in Cambodia, East Timor, Sierra Leone, and Lebanon), he can certainly be praised for engaging the reader in the discussion that challenges the rationalist approaches to law, politics and social reality more generally. While Rogers’ work provides valuable insights into various prosecutorial decisions, the story is unfortunately far from coherent.

First of all, on certain occasions the analysis lacks a deeper understanding of international criminal law, particularly international criminal procedure, which makes the research at times confusing. For instance, when the author looks into the opening statements, he frequently laments that prosecutors failed to focus on the underlying causes of conflicts. The complexity of a criminal trial and the role of prosecutors hardly imposes an obligation on them to explore in detail the causes of the conflict (especially remote ones). In addition, international criminal law is a result of a complex interplay of both political and legal factors which condition the majority of prosecutorial decisions, including the choice of charges and indictees. International criminal tribunals, including the ICC, rely heavily on states’ co-operation: no fool-proof recipes are available on how to navigate political matters and to balance legitimacy and pragmatic concerns so as to not threaten the very existence of international adjudicatory mechanisms. Therefore, it is unclear who the author is arguing against when he is trying to dissolve the naive notion of law as distinct from politics. A criminal trial (particularly an international one) involves many technical and pragmatic issues, and even if examination of the root causes might also be part of the trial, very often tribunals choose not to engage with them for a variety of reasons (for instance, time constraints or lack of resources), especially when there are other more appropriate dispute settlement bodies and fact-finding mechanisms, such as Truth Commissions.

Secondly, criticism can be raised in relation to the author’s choice of sources. The sources mostly include prosecutors’ opening statements, the texts of the indictments, and materials on the tribunals’ web-sites. While the choice of sources might be justified by the selected methodology (though historians would be disappointed to see no previously unknown sources in this research), there is little clarification as to how and why the author selected them. In addition, a very serious shortcoming is the lack of field research. It appears that the credibility of the project would have been improved had the author also decided to go out into the field and talk to the very people he accuses of complicity ‘with powerful forces animating modernist world affairs’.Footnote ¹⁰

Despite its initial claim to explore the role of epistemic communities (represented by the tribunals’ prosecutors) in the application of international criminal law, the book maintains a predominantly state-centric view. In this regard, it is unclear whether, in the author’s view, international prosecutors, being part of an epistemic community, have any role to play independently of states. Then, it is difficult for the readers to distinguish between political, strategic and other choices made by individual prosecutors, which gives the impression that they acted unanimously and no conflicts ever surfaced among them. While presenting international criminal trials as biased and selective, the author leaves the reader with no answer to the question of what non-selective justice might look like and whether it is not merely another form of utopia, not much different from the neo-liberal utopia he criticizes in his book. While it is clear from the beginning that the author is no fan of international criminal justice, he never explains what he considers the best way to avoid this discourse informed by the ‘utopian movement of economic liberalization’.Footnote ¹¹

Very questionable as well is the author’s constant attempt to divert the argument from prosecutors’ activities to a discussion of the causes of the conflicts, which gives the reader only a glimpse into the causes and hardly adds anything new into the vast literature written on the conflicts under analysis. Very often the author’s speculations are not supported by convincing evidence. For instance, by presenting African states and the states of the former Yugoslavia as victims of Western powers, the author denies them agency. The author seems to overemphasize the role of the United States (US) in the Western Balkan region, while the role of the European Union (EU) and the ICTY co-operation requirement imposed on states applying for EU membership is completely absent from the picture. Besides, too much emphasis on the activities of the US in the period after the Second World War makes the book often one-sided and ignores the interests of other states, particularly the USSR (and later, Russia). The author claims that the US attempted to assert its role as a world hegemon but fails to explain why the US would choose to do so in the form of international criminal justice. In addition, it is left unexplained why US policy shifted in relation to the ICC and why the ‘war on terror’ took the form of the use of force instead of justice. Why did the US favour the extra-judicial killing of Osama bin Laden and not an international trial? Why would powerful states create these expensive institutions and spend time and resources on them, when they can use force or economic leverage?

In addition, while criticizing the ICC for its selective indictments, the author himself is inconsistent in his critique. On the one hand, he criticizes the ICC for often indicting rebels (such as representatives of the Lord’s Resistance Army in Uganda) rather than government representatives who also committed mass atrocities. On the other hand, with regard to the government representatives prosecuted by the ICC (such as Omar Hassan Ahmad Al Bashir, the president of Sudan), he takes issue with the fact that the indicted are only leaders of the so-called ‘outlaw states’ and ‘those who use force to subvert the democratic process’.Footnote ¹²

Examining prosecutors’ work through the lens of critical thinking can be regarded as a novel and ambitious choice of methodology, and can certainly be of interest to discourse analysis scholars and specialists on international relations and conflict studies. Unfortunately, the book does not offer a comprehensive picture of the specifics of international prosecutors’ work, policy choices and challenges. Given that international justice is an on-going phenomenon that has enormous practical and academic importance, the question of international prosecutors’ work deserves more rigorous and careful examination than the one presented in Law, Politics and the Limits of Prosecuting Mass Atrocity.