Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period

Abstract

This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.

Hidden figures: how legal experts influence the design of international institutions

“…The ILC's strategy excluded potential design options based on previous institutionalization attempts from the interwar period that covered a much broader set of offenses within the category of international crimes (war crimes, aggression but also piracy, terrorism, drug, and human trafficking, etc.) (Holthoefer, 2016;Lewis, 2014).…”