Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice, OUP, 2009, pp. 1008.
Short book review by Jernej Letnar Černič.
International criminal law falls within the areas of international law which have progressively developed in the past two decades. This field of law has come a long way since its first steps in Nuremberg and Tokyo after the Second World War and the more recent establishment and functioning of ad hoc tribunals in the Hague and Arusha and the permanent International Criminal Court. In this way, international criminal law has taken confident and decisive steps towards becoming a full-fledged discipline of international law, and towards ridding itself of non-compliance problems so common to the (non-)functioning of general international law. It must be noted, however, that the status of international criminal law as a full-fledged and independent discipline has never been questioned by its practitioners and scholars. In this sense, the Oxford Companion to International Criminal Justice (hereinafter the Companion) confirms that international criminal law has come of age and become a full standing discipline within international law.
The Companion offers a unique and comprehensive explanation and analysis of the most important issues in international criminal law. Although such a book has been long awaited by scholars and practitioners, it can be noted that it was worth waiting for despite its minor weaknesses. The Companion, edited by Antonio Cassese, professor at the University of Florence and one of the founding fathers of international criminal law, offers a clear, authoritative and comprehensive introduction to the subject of international criminal law. Professor Cassese explains in the foreword that he ‘very much liked the idea of compiling for the first time a sort of encyclopaedia covering an area that, while in full bloom, had not yet been the object of a general exposition of all its ramifications and intricacies.’ The choice of the book title ‘The Companion to International Criminal Justice’ indicates that the book is meant to be employed together and complemented with other works on the subject. In this way, it offers valuable insights into international criminal law. In the editor’s words in the foreword, ‘the Companion will prove helpful to those who, as scholars, students or practitioners, deal with or interested in international criminal justice’. The Companion brings together contributors from several fields, both academics and practitioners.
The companion is divided into three parts (A, B and C). Part A includes 21 short essays by academics on the fundamental questions and conundrums of international criminal law. Part B includes 320 individual entries covering the main legal issues in international criminal law and Part C includes over 400 short case notes.
The Companion discusses in the first section of Part A the major problems of international criminal justice. This section includes essays on collective violence and international crimes, state responsibility and criminal liability of individuals and alternatives to international criminal justice. Section II of Part A examines the fundamentals of international criminal law. It comprises five essays on sources of international law, general principles of international criminal law, international criminalization of prohibited conduct, gender-related violence and international criminal law and justice, and an essay on modes of international criminal liability. Section III scrutinizes the interplay of international criminal law and other bodies of law: In this way, it includes essays on comparative law as a necessary tool for the application of international criminal law, the influence of the common law and civil law traditions on international criminal law. Finally, section IV of the first part offers essays on: the rationale for international criminal justice, international criminal justice in historical perspective: the tension between states’ interests and the pursuit of international justice, the international criminal court as a turning point in the history of international criminal justice, the international criminal court and third states, politics and justice: the role of security council, problematic features of international criminal procedure, cooperation of states with international criminal procedure, means of gathering evidence and arresting suspects in situations of states’ failure to cooperate, international v national prosecution of international crimes, judicial activism v. judicial restraint in international criminal justice. As these essay are limited in their lengths and consequently in depth of analysis, a prudent student of international criminal law will have to complement them with other academic works on international criminal law. Alas, this review cannot, due to restriction of space, assess all of the essays in Part A, but it is worth noting some of them. For instance, A. Bianchi argues in his essay on State responsibility and Criminal Liability of Individuals that ‘the duality of the regimes of state and individual responsibility should not be seen as a negative development'(at p. 24). R. Cryer, for example, argues that ‘there are ways by which evidence and suspect can be obtained without the direct cooperation of national or territorial states…, however they have their limits.’ (at p. 209). Another essay worth highlighting is the essay on International Criminal Justice in Historical Perspective by M. Cherif Bassiouni noting that ‘it has become increasingly difficult for governments to openly and blatantly assert the predominance of national interest as prevailing over the interest of international criminal justice’ (at p. 140). Equally interesting is the essay by M. Damaška on ‘Problematic features of International Criminal Procedure’. In addition to these essays, it would be welcome to include a short essay on how international criminal law can ensure that ‘equality of arms’, the rights of the defence and the right to a fair trial are safeguarded.
The Companion in its Part B examines issues, institutions, and biographies of personalities involved in international criminal law. This section includes 320 entries organized in alphabetic order ranging from ‘abuse of process’ to ‘witness protection’. While any scholarly work of limited length cannot by default include all issues, institutions and personalities featuring in international criminal law, it appears, however, that the selection criteria for inclusion in the list of the 320 are somehow unclear and inconsistent. For example, whereas Part B includes an entry on the Armenian Genocide, it fails to include an individual entry on Soviet totalitarian crimes or totalitarian crimes in Eastern and Central Europe. Also, entries on rape of Nanking, Katyn massacre, Ukrainian Famine of 1932-1933, inter alia, would have been welcomed. That said, such omissions can be easily corrected in the future versions of the Companion. Additionally, the entry on Defence Counsel in Part B notes the following: ‘… Office of Public Counsel for Defence, which can provide duty counsel for suspect and defendants …’ (at p. 293). It would have been appropriate to add that the Office of Public Counsel for the Defence established under Regulation 77 of the Regulations of the International Criminal Court, represents a novelty in the landscape of international criminal justice and that this independent office offers support, legal support, and assistance to defence counsel and to persons entitled to legal assistance, either by providing legal advice, or by appearing before a Chamber in respect of specific issues.
Finally, Part C contains 420 brief case notes again structured in alphabetical order examining major cases from national and international jurisdictions addressing war crimes, crimes against humanity, genocide, torture and terrorism. This part includes entries ranging from an entry on the Belsen Trial to the Zyklon B case. It would have been interesting to include also short summaries of trials in Eastern Europe of former Communist officials for post-second world war trials.
The companion has a number of minor weaknesses. It is doubtful what could be its practical values for practitioners, who for example are required to prepare a memorandum on interlocutory appeal or on admissibility of evidence given the book addresses these questions with a limited number of words. It appears, however, that this was not the main objective of the book, which has been written as an introduction for further study, analysis, and research of international criminal law. One could also note that the book could have been written in a more inclusive way, particularly given the fact that the vast majority of contributors stems from western States or works there. These minor weaknesses, however; do not overshadow the intellectual and scholarly value of the book.
The authors of this book have invested a lot of research, practical experience, time and patience in the preparation of the book. In this way; the book is undoubtedly a step forward and an original, valuable and authoritative contribution in the area of international criminal law. It is therefore an excellent starting point for the advanced research and academic work in international criminal law and an indispensable reference tool for students and practitioners.