Least ambitiously, this paper tries to capture the ethos of international criminal law.Footnote ¹ More ambitiously, it argues that international criminal law is, or can profitably be seen as, an ethos, rather than a body of law. In this telling, international criminal law, despite its name, emerges as an ethical–administrative enterprise rather than a legal one. If placed alongside global administrative law, international criminal law appears as alegal rather than illegal, as ignoring the principle of legality, say, rather than as violating it, so that to criticize international criminal law for its illegality would be like faulting apples for not producing orange juice, and oranges for not making apple pie.

I begin, in section 1, by suggesting what might be gained by engaging in a critical analysis of international criminal law as an ethical, rather than as a legal, enterprise in general and in light of the notion of common civility in particular. Section 2 then sketches the outlines of such an account. Section 3 applies this account to the question of whether international criminal law is a misnomer, being neither international, nor criminal, nor law.

1. The ethos of international criminal law

The culture of international criminal law has been said to combine civil and common-law elements. This observation is trivial if it merely refers to the fact that there are civil-law and common-law countries (or at least systems) in the world and that international criminal law, as all international law, will likely reflect both civil-law and common-law elements, or at least influences. In fact, it might be more accurate to say that this observation is at best trivial, since the very distinction between ‘civil-law’ and ‘common-law’ elements, influences, countries, and even systems is as unclear as it is unhelpful, and becoming ever less clear and more unhelpful, and should therefore be taken with ever more grains of salt. Few approaches to comparative criminal law, or international criminal law as applied comparative criminal law, are less productive than comparisons, and, almost inevitably, normatively loaded comparisons between ‘the common-law’ and ‘the civil-law’ position on, or approach to, a given issue. Cross-country comparison is difficult enough, particularly if one supposed point of comparison is itself a multi-jurisdictional construct, such as the United States or, for that matter, the United Kingdom.Footnote ²

And, yet, the notion of ‘common civility’ can provide a useful, or at least a convenient, point of departure for an exploration of the culture of international criminal law. This is so because international criminal law's ethos reflects common and civil elements in two senses. First, the ethos of international criminal law combines ‘the common’ and ‘the civil’ commonality (or community) and civility: it represents and creates, or at least gestures at, a community of civility. The Sittlichkeit of international criminal law is defined, and distinguished, by its shared commitment to norms of civility. It is an ethical community of the civil, defined against the non-civil, barbaric, other, a Durkheimian penal society as brittle as it is broad, as thin as it is wide, that has little, if anything, in common beyond its shared commitment to civility in the face of the non-civil, instantiated – if not personified, strictly speaking, depending on one's concept of personhood – by disgraced and isolated individuals whose powerlessness (following the prerequisite fall from power) marks them both as suitable and, at the same time, inappropriate as common, and community-defining, objects of ethical condemnation.

Second, this essential, or at least defining, ethicality and alegality of international criminal law reflects common and civil elements in the more technical and familiar sense of ‘common law’ and ‘civil law’. Contrary to the pointless, but apparently irresistible, claims of normative superiority made on behalf of the ‘common law’ over the ‘civil law’, and, of course, vice versa, countries that are generally considered as representative of either system themselves display alegal characteristics. International criminal law's alegality, in this sense, is not unique, though it may well be uniquely constitutive.Footnote ³ It is an oversimplification to regard domestic criminal-law systems as grounded in legality, occasional slip-ups on the margins notwithstanding, and as closely approximating an ideal of legality that so far has remained beyond international criminal law's grasp. This approach misunderstands both domestic and international criminal law because domestic criminal law is less committed to the ideal of legality than might appear from the remote perspective of international criminal law and because international criminal law, as alegal, is not in the business of pursuing this ideal in the first place.

To what extent ‘common-law’ and ‘civil-law’ countries are not merely illegal (in the sense of inconsistent with the principle of legality) but alegal (in the sense of unconcerned with the principle of legality) is a nice question. It is tempting, though overly simplistic, to distinguish between common-law and civil-law countries by reference to the distinction between (‘mere’) illegality and alegality, even if this analysis would concede the legality deficit of civil-law systems – a recognition that would complicate efforts to present the challenge of international criminal law as the transfer of domestic legality that is, if not perfectly realized, at least close enough for government work.

Nonetheless, even if one entertains the possibility of the alegality, and not ‘merely’ the illegality, of the penal regime in civil-law countries, common-law and civil-law alegalities differ historically and systematically, even interestingly. Taking the United States as an example, the argument can be made – and in fact has been madeFootnote ⁴ – that the US penal regime as a whole is systemically alegal insofar as it derives historically and even doctrinally from the so-called power to police, where ‘police’ is to be understood in the traditional broad sense of the welfare of the state household, reflecting precisely that patriarchal conception of governance on which the law-based critique of the Enlightenment, with its notions of the rule of law and of the Rechtsstaat, cut its critical teeth.Footnote ⁵

By contrast, in Germany – taken here, as elsewhere, as a representative civil-law country – criminal law for some time has been located within the context of the Rechtsstaat project, at least at the level of theory, and more recently at the level of constitutional principle, as the foundational work not only of Kant and Hegel, but also of P. J. A. Feuerbach, and the post-Second World War jurisprudence of the German Constitutional Court make clear.Footnote ⁶ This is not to say, however, that the German penal regime cannot be usefully regarded from the perspective of alegality, rather than illegality. Commentators continue to note policial aspects of the current German penal regime, by diagnosing a general policification of the penal regime (Verpolizeilichung);Footnote ⁷ by recognizing a so-called enemy criminal law (Feindstrafrecht) that coexists with, and within, German criminal law;Footnote ⁸ and by documenting the historically uncertain status of the legality principle in German criminal law, and not merely during the Nazi regime, but also before and after.Footnote ⁹ It is therefore at least debatable whether any legality deficit in the German penal regime reflects a failure to consistently implement an acknowledged principle of lawness or a failure to acknowledge, and to appreciate, the fundamental significance of that principle in the first place.

In the end, of course, the distinction between the alegality and (mere) illegality of a domestic penal regime is secondary for our present purposes. Primary is the point that domestic penal regimes are not panaceas of lawness that bring the perceived legality deficit of international criminal law into sharper relief.

2. Common civility

The ‘commonness’, or commonality, of the common civility of international criminal law is, most abstractly, a sharedness, an identity in the sense of some shared characteristic that connects all members of the community of international criminal law. What that commonality consists of remains not only vague, but also difficult to discern, partly on account of its very thinness. The community of international criminal law, after all, is not a political community, one defined by a polis, or, more concretely, a state or set of political or government institutions. It is also entirely novel, continuously creating and bootstrapping itself, without the benefit of a shared history.Footnote ¹⁰ It is a frontier community, always seeking and remaking its limits.

Here, the international criminal-law community recalls the commonness of the common law, which traditionally has been contrasted with the formality, and centrality, of royal or statutory law. In this light, international common criminal law is informal, rogue, even ‘wild’, organic, grass-roots law, all bottom, no top, and therefore also, paradoxically, local, non-centralized law, to pursue the analogy with common law in its communal–parochial telling before the advent of central governmental institutions, and eventually something resembling a state.Footnote ¹¹

This view of the common law, of course, contrasts sharply with that of the common law as an instrument for the unification, or at least standardization, of a patchwork of disparate local norms – that is, of common law as common royal law. In this conception of common law, its commonality derives from its royal nature; common law is common insofar as it is the king's law, imposed by the king's courts on local communities whose norms were diverse, informal, perhaps oral and at any rate difficult to determine or to comprehend (or both), and therefore resisted royal attempts to integrate and to govern (and to tax) the king's realm.

International criminal law as common law obviously denies even the existence, never mind the influence, of a centralizing state. There are no royal courts; there is no royal law. It is therefore the common law in its purely communal form, without even the hint of a central standardizing project for the sake of more convenient governance.

Note that the commonness of international criminal law is not confined to common-law countries, nor does it reflect a historical, or even a conceptual, connection between international criminal law and ‘The Common Law’. Garré's rich study of ‘common law’, which explores the multifaceted significance of common law in legal discourse, concerns itself with the Continental jus commune, not with English common law. Studies of the jus commune and the common law rarely take notice of each other, to the point at which this mutual lack of interest itself has become the subject of scholarly inquiry.Footnote ¹² ‘Civil-law’ countries today are seen in contradistinction to ‘common-law’ countries, so that the jus commune is confined at best to historical curiosity of no domestic or contemporary significance, the recent explosion of interest in the jus commune as a set of European communal norms notwithstanding. In fact, the excitement of (re)discovering a European jus commune nicely illustrates the continued communitarian significance and power of the idea of common law, even in countries that regard themselves as having long left behind the chaotic, pre-scientific, wild days of the common law, and having seen the light of codification instead.

Just as ‘civil-law’ (i.e., not-common-law) countries deny the commonness of their law, so ‘common-law’ countries historically have denied the civilness of theirs: here, civilness is associated with a troubling oppressive centralizing tendency – originally identified, by the English, with French governance, first royal and then, with little adjustment in the prejudice, republican – seen as an attempt to bulldoze over the locality, singularity, and diversity of common law and indeed of those who govern themselves by it – that is, Englishmen who possess that quintessential English characteristic, common sense (also much admired by Continental Anglophiles, particularly in nineteenth-century Germany). This conception of common law extends the historical myth of the locality of common law into modern governance and combines it with the denial of its centrality, and therefore of the modern state itself. In England, public law to this day struggles to define itself in the absence of a coherent affirmative account of the state.Footnote ¹³ In English criminal law, the very idea of codification remains controversial, partly as a result of its association with the inflexibility of top-down, if not to say anti-democratic, civil dogmaticism (an ironic anxiety given the central role of Austinian positivism in English legal theory, even as Bentham's influence is generally ignored). In the United States, not even widespread codification of the criminal law, early on and in particular in the second half of the twentieth century in the wake of the completion of the American Law Institute's Model Penal Code, has managed to transform criminal law into a public-law code-based subject, even as the massive and massively oppressive penal regime of the so-called war on crime pursued a comprehensive campaign of state control.Footnote ¹⁴

2.1. International criminal law

As a denial of stateness, the commonness of common law is reflected in international criminal law, which likewise fashions itself as a penal regime without a state, and more generally without a sovereign.Footnote ¹⁵ Apart from the question of whether penality without sovereignty is possible, or at least how penality without sovereignty is to be conceived given the long-standing, if not foundational, intimate connection between the two in political discourse and practice, it is worth noting that the denial of statelessness in the common-law world has also been a denial of the need to legitimate the exercise of penal power by the state. In a system that denies the existence of the state,Footnote ¹⁶ the central critique of the Enlightenment directed at all state power – and the demand for legitimation in light of the fundamental principle of autonomy derived from the modern conception of the person as possessed of the essential, and sufficient, capacity for self-government – simply has no point; it misses its target because it has none.

This combination of the denial of sovereignty and the assumption and uncontested exercise of an assumed penal power essentially connected to the very idea of sovereignty is one way of framing the central paradox, or at least irony, of American penality in particular. American penality historically manifested itself as an obvious, even natural, exercise of the power to police, which was both defined by its undefinability and considered so essential to the concept of sovereignty that the federalist compromise rested on its retention by the states.Footnote ¹⁷ We will return to the policial – and therefore alegal – nature of American penality a little later on; for now, the point is simply that this most sovereign of powers coexists uneasily with a self-conception of American governance as sovereignless, as though the rejection of the King of England as sovereign meant the end of sovereignty, rather than its transferral, be it onto the conveniently amorphous ‘people’ or the supposedly absent state in the (mythical) laissez-faire community of the New World.Footnote ¹⁸

The paradox of American penality, of sovereign sovereignlessness, then, illustrates the difficulties of subjecting a stateless governance regime in general, and a stateless penal governance regime in particular, to the fundamental and comprehensive legitimacy scrutiny associated with the Enlightenment, and therefore the modern liberal political project. To the extent that international criminal law regards itself as stateless, it faces the same difficulty. One of the central aims of the Enlightenment in the political sphere was to subject the exercise of power, and of penal power, as the sharpest form of power, in particular, to critique, forcing those who assumed the power to punish for the first time to justify actions that until then had been taken – if they were thought about at all – as obvious instances of the very nature of governance. Through its at best naive posture of natural, or ‘wild’, statelessness, international criminal law removes itself from this critique and, in that sense, locates itself in a premodern realm of unquestioned, and unquestionable, penal power.

If one were to understand commonness not negatively as not-civilness (disregarding for the moment the paradoxical nature of that conception), but positively as commonality, international criminal law could be seen as harkening back not to premodern sovereignty asserting itself naturally through penal discipline, but instead to the communitarian notion of common law as common. While this notion is most commonly associated with English domestic political history, it also plays an important, though often underappreciated, role in the Continental or at least inter-sovereign political history of Europe, represented by the recently rediscovered jus commune.Footnote ¹⁹ In this connection to, if not (possibly anachronistic) yearning for, a commonality of norms, international criminal law thus would recall not merely English common law, but more directly the evolving project of European criminal law, at least to the extent that European criminal law can be seen as part of a comprehensive attempt to discover the ‘common core’ of European law generally speaking, which so far has largely been limited to private law but recently has expanded into criminal law as well.Footnote ²⁰ European criminal law, it is worth noting, displays the same tension between commonality and civility, between locality and centrality, that characterizes international criminal law, as efforts to codify European criminal law coexist uneasily with attempts to catalogue areas of overlap in principle or in doctrine.Footnote ²¹

2.2. European criminal law

Unlike the project of European criminal law, and European law in general, however, international criminal law does not, and cannot, look back upon a common history, however mythical; unlike European criminal law, international criminal law cannot wish, however hopelessly, to (re)join together what has been put asunder. International criminal law instead perceives itself as a pioneer project to boldly go where no one has gone before. Comparison among domestic criminal-law systems is not designed to unearth common roots as much as it is to find a compromise position that reflects disparate influences (in particular those of the ‘common law’ and the ‘civil law’, occasional references to other legal systems notwithstanding). In this sense, international criminal law is a profoundly ahistorical project, as opposed to the profoundly historical (or at least anachronistic) project of European criminal law.

Without a sovereign and without a communal history, the nature and scope of international criminal law's commonness remain unclear and flexible; the community of international criminal law continuously defines, or rather recreates, itself. Its commonality is negative, exclusionary in the literal sense. It is defined by those who remain outside it, who help define it in contradistinction to itself. The community of international criminal law, unlike a sovereign community, is not defined in relation to other communities, but in relation to its non-members, who themselves remain without community. The community of international criminal law, in other words, is defined by the quintessential outsider, the relevant other, the outlaw, the uncommon.

The boundaries of international criminal law are ill-defined, ad hoc, felt rather than made explicit. Without the scope of sovereignty, it is a natural community that manifests around particular instances of exclusion, or rather of the shared recognition of non-membership. On the face of it, it appears as global, though it is less global, or international, than it is not domestic and not bounded. It has been said to reflect the existing global power structure, informally manifesting the dominance of North over South, and rich over poor. The International Criminal Court, in particular, is widely perceived as, and criticized for, having focused on Africa, with all current cases before it originating in Sub-Saharan Africa.Footnote ²²

Without predetermined limits, sovereign or merely historical, international criminal law as lived community is driven by common disgust and hatred – a shared and uncomplicated, natural and healthy appreciation of pure evil that is beyond legitimation. The boundaries of this community of feeling are less defined than they are performed; trials are not means for the application of predetermined general norms to specific cases, but performances and shared experiences of commonality. International criminal tribunals are theatres of communal exclusion. They do not constitute the procedural element of international criminal law; they are international criminal law.

International criminal law thus is, at best, a communal practice in search of a rationale. The logic of international criminal law is ex post, not ex ante. In this sense, international criminal law resembles corporate criminal liability.Footnote ²³ One is driven by a shared sense of disgust that neither requires nor permits legitimation, the other by a shared sense of pragmatic necessity; both have developed, and continue to develop, with little patience for the ex ante constraint of legal norms or, for that matter, of principles of legitimacy. Who, after all, could possibly quarrel with ‘incapacitating toxic political leaders’?Footnote ²⁴ Legitimacy is beyond doubt, and legal norms are accommodated and adjusted as needed, as if to comply with a set of extraneous requirements that are reinterpreted as informal guidelines.

Given the enormity of the evil, the strength of the shared feelings of disgust triggered by ‘perpetrators of infamies’,Footnote ²⁵ the international criminal trial, very much like the substantive and procedural norms of international criminal law, itself appears as a technicality, a communal experience of exclusion complicated and disturbed by rules that may stand in the way of reaching the inevitable conclusion of guilt, which – ironically – becomes less significant, as the trial itself constitutes the shared experience, even apart from its technical conclusion. Substantive, or ‘moral’, guilt will be established even if formal (technical), or ‘legal’, guilt is not.Footnote ²⁶ In fact, substantive guilt will have been felt long before the trial, as even the pretence of a presumption of innocence is dropped along with the distinction between suspect, accused, and perpetrator.Footnote ²⁷

Historically, the process in international criminal law appears as an extended, but similarly undermotivated, version of the short process (kurzer Prozess) used in cases of offenders caught red-handed (handhabende, in flagranti delicto, etc.), namely where the offence was ‘open and manifest’. Whereas the handhabende thief could be summarily punished, the international criminal-law offender is subjected to an extended process. That process, however, is not necessary to establish the offender's legal guilt or the legitimacy of his punishment, but rather to reflect, to perform, and to communicate the offender's condemnation by the community of the civilized. International criminal law needs a ‘champagne-quality’Footnote ²⁸ process because only champagne quality will do to illustrate civilized behaviour, even in the face of utter, yet powerless, evil. The civilized pursue evil, but they do not descend into uncivilized behaviour no matter how great the temptation. (Consider, in this context, also the rejection of capital punishment, which otherwise stands in curious contrast to the enormity of the evil personified by international criminal offenders.)

Commonality of civility, then, is one way of capturing the ethos of international criminal law. International criminal law is the community of the civilized, and the project of international criminal law is a project of civilization and, indirectly, of pacification. International criminal law marks off not only the civil from the uncivil, but also the civilized from the uncivilized. In its most idealistic Camelotian moments, international criminal law devotes itself to spreading civilization throughout the world, bringing peace and security to the remotest corners of the globe.Footnote ²⁹ In the end, international criminal law contributes to an ambitious project of establishing a well-ordered world community, a pax universalis (much as European criminal law pursues a pax europaeana).Footnote ³⁰ This global peacemaking and -keeping project is usefully compared to other globalization regimes, notably that of global administrative law, an evolving phenomenon of governance that we will consider in greater detail a little later on.

As with all pacification projects, and all penal pacification projects in particular, international criminal law faces the question: whose peace? Without an answer to this question, if not with an attempt to deflect it by proclaiming its own powerlessness, international criminal law leaves itself open to critique that civilizing and pacifying enthusiasm may come to mask imperialist and colonizing tendencies. We have already noted the International Criminal Court's focus on African cases; similar concerns have been raised about the evolution of global administrative law, which is said to favour the interests of powerful over Third World states under the guise of the apparently neutral pursuit of globalization.Footnote ³¹

3. International criminal law as misnomer

Regarded as common civility, international criminal law is an ethos. It is not law. Nor is it international or criminal law. In other words, it is a misnomer through and through.

It is easily seen that there is nothing, strictly speaking, international about international criminal law. International criminal law, unlike international law, does not concern itself with nations individually or their interrelation; it is neither national nor international. It marks individuals as worthy of universal condemnation, for crimes against humanity, pitting the offender, or rather the accused, against all of humanity, as an ‘enem[y] of all mankind’.Footnote ³² The victims of international criminal law, too, are victims as individuals, not as members of this or that political community, subject to this or that sovereignty.Footnote ³³ (Even genocide is, at least arguably, not an offence against the genus, but against individuals who were victimized on account of their membership in the genus.) Judges and other ‘officials’ of international criminal justice likewise are engaged as humans, not as officials of some nation or other.

Here, it is interesting to recall Gustav Radbruch's account of the distinct histories of criminal and international law, which marks the very concept of international criminal law as an oxymoron.Footnote ³⁴ According to Radbruch, criminal law evolved from the master's (literally) domestic – or economic – disciplinary power over the inferior members of his household, and slaves in particular. Criminal law thus was essentially hierarchical, an assertion of superior power. International law, by contrast, was essential egalitarian, as it concerned the relation among householders, and eventually among states. One householder might negotiate with another, in the hope of reaching a mutually acceptable resolution to a conflict. As a last resort, he might abandon negotiation and turn to war to protect his interests, or the interests of his household (which were seen as merged, given that the householder was the only cognizable representative of the household). But, even in war, households/states would face one another as equals, subject to a more or less elaborate set of norms.

The very idea of international criminal law, which, on its face, combines the essential hierarchy of criminal law with the essential egalitarianism of international law, is therefore puzzling. The internal tension of the project of international criminal law may be seen as another way of capturing its attempt to have its cake and eat it, too – that is, to invoke the condemnatory force of penal power without facing the challenge of its legitimacy. International criminal law thus would appear as a utopia of egalitarian punishment, as a settlement of disputes among humans (as equals), while at the same time marking the objects of punishment as offenders against humanity and as evil incarnate.

In an important sense, international criminal law is also not criminal. It is in the end concerned with radically immoral and unethical conduct, where moral and ethical norms can be seen to coincide, given that the ethical community at stake is the community of all humans, and international ‘crimes’ are ‘crimes’ against humanity. It is no surprise, then, that international criminal law struggles to distinguish itself from humanitarian law, so that it often goes without saying that a violation of a humanitarian norm is also regarded, or at least treated, as a violation of a criminal norm.Footnote ³⁵ What is at stake is not criminal guilt, but moral guilt, or ethical deviance, through violation of norms of the human moral/ethical community.Footnote ³⁶

Most significant, for our purposes at least, international criminal law is also not law.Footnote ³⁷ It is not a body of law, but a regime of police.Footnote ³⁸ Ostensibly framed in the language of human rights, it in fact pursues the establishment of a global peace in much the same way as the medieval householder protected and enforced his peace (mund), as English criminal law has for centuries protected and enforced the king's (or queen's) peace, and as American criminal law has for (now also, if fewer) centuries protected and enforced the public peace, having transferred sovereign power from the king to ‘the people’.Footnote ³⁹ From this perspective, the violation of human rights is relevant insofar as it marks the offender as violator of a global human peace, the humanity of the victim being significant insofar as it identifies her as a member of the relevant global human household. The oddity of the international criminal police regime, of course, is its denial of sovereignty. There is no householder, royal or otherwise. Consider American penal and constitutional history, which also denied the existence of an essentially superior, and specifically royal, sovereign through the obfuscating fiction of an amorphous people sovereign. The non-sovereign sovereign of international criminal law is not ‘the people’, but humanity as a whole – a community that not only manages to be vastly wider and abstracter than ‘the people’ of American constitutional history, but also lacks even the vague political connotation of that construct. The absence of a sovereign not only allows international criminal law to deflect the need to justify the exercise of superior power, but also creates a vacuum that may be filled in a way that replicates existing global power structures, giving rise to the sort of critiques of discriminatory enforcement that have been levelled against global asovereign regimes such as international criminal law and global administrative law.