Discursive Limits: The Failure to Establish an International Criminal Court; 1946–1954

Abstract

Why did efforts to set up an International Criminal Court in the 1950s fail and then succeed in the late 1990s? In order to account for this difference, I will examine the discursive practices of both states and NGOs with reference to punishing war crimes in the two periods in light of the international political context in each period. A full appreciation of the political and juridical accomplishments embodied in the establishment of the ICC in 2002 requires an understanding of the challenges that this project faced in previous decades. Understanding the reasons why the effort to establish an ICC failed in the 1950s can help us to appreciate the obstacles that were overcome by ICC negotiators in the 1990s. It also helps us to understand the birth pains that the ICC is now experiencing and the structural limitations that the ICC is facing because it is constituted as part of the interstate legal system. This chapter offers an analysis of the breakdown in the 1950s negotiating process and highlights the challenge of enforcing criminal law in the sovereignty-based international legal system.

We all have to recognize no matter how great our strength that we must deny ourselves the license to always do as we please. This is the price that each nation will have to pay for world peace.

—Harry S. Truman, Address in San Francisco¹