Reviews of previous editions have noted this book's ambitious scope: it sets out to survey the entire field of individual legal accountability for egregious human rights violations. It thus covers, and seeks to transcend, the four doctrinal fields of human rights, humanitarian law, international criminal law and domestic law, as well as ‘the criminal/non-criminal divide’, rightly acknowledging that ‘goals of individual accountability can be reached by numerous paths’ (pp 17–18). Despite the explosion in relevant secondary literature since the time of the first edition in 1997, this remains an important enterprise at a time when post-conflict or post-regime change ‘transitional justice’ is sometimes taken to be synonymous with ‘international criminal law’ (ICL), often under the rhetoric of ‘ending impunity’ or ‘no peace without justice’. Accountability rightly notes that ICL is but one ‘of the alternatives along a continuum to enforce international human rights or humanitarianism’ (p 13). Indeed, ICL ‘falls short as a comprehensive analytic lens for at least three reasons’ (p 18). The first two are definitional: ICL inherently excludes both non-criminal enforcement mechanisms and those human rights violations not classified as international crimes. ICL's third failing, in the authors' view, is that, ‘consistent with international lawyers’ over-fascination with courts', ICL scholarship tends to focus on decision of ‘a handful of international courts, thereby neglecting … domestic mechanisms’ (ibid).
The book's target audience is, then, not primarily international lawyers but ‘human rights advocates, regional specialists, civil servants in governments and international organizations, and others in the human rights community’ for whom it aims to ‘render the [relevant] material approachable’ (pp xlix–l). This is unsurprising, given the book's origin in a 1994 US State department project on legal options for bringing Khmer Rouge leaders to account (p xv). Accountability thus has the virtues of practicality, conciseness, and of cutting a clear path for the uninitiated through dense thickets of material. It must inevitably sacrifice a degree of legal nuance to this end, and certain sections are avowedly no more than a ‘sketch’ of the relevant law (eg p 143). Any minor quibbles, however, must fall away in face of a clear, thoughtful and scholarly overview, supported by excellent footnotes pointing the way to authoritative further reading on specific topics.
As in previous editions, Accountability is divided into three parts covering substantive law (genocide, crimes against humanity, other international offences and the law of individual criminal responsibility), mechanisms for accountability (national tribunals, international tribunals, non-prosecutorial options and a section on evidence and judicial assistance) and a detailed case-study of the Khmer Rouge's atrocities and subsequent accountability efforts. It also includes an appendix of extracts from significant international legal texts. With the addition of both a third author and 50 pages to the last edition, much has been revised, expanded or included for the first time. Among significant additions are new sections on terrorism, internationalized or ‘hybrid’ tribunals, lustration and the Extraordinary Chambers in the Courts of Cambodia (ECCC). An area of welcome expansion (reflecting the now voluminous case-law) is Chapter 6 on modes of participation in offences, defences and barriers to prosecution in international criminal law.
The philosophy of the book remains that national tribunals should be the prosecutorial forum of first resort and the selection of Argentina, Ethiopia, post-communist Germany and Rwanda as broad case studies stands in contrast to the usual focus on select national trials such as Finta, Barbie and Touvier, Calley and Polyukhovich. The emphasis is thus on the ‘macro’ of isolating criteria for successful national prosecutions in transitional societies, not the ‘micro’ of how highly-developed judicial systems have navigated international law's complexities in isolated cases. The ‘progeny of Nuremburg’, the international and hybrid tribunals, are treated with a balanced scepticism untarnished by cynicism (Chapter 9). The authors praise the undoubted contribution of the ad hoc tribunals for the former Yugoslavia and Rwanda to the substantive development of ICL, but conclude: ‘[t]he tribunals are distant from and inaccessible to the affected populations, have only a modest effect on reconciliation and the national judicial infrastructure, … little discernable deterrent effect, and have only been able to try a small percentage of offenders’ (p 252). Nonetheless, this does not suggest any blanket prescription that international tribunals are undesirable. In Cambodia the authors endorse views that an international tribunal would have been preferable for trying Khmer Rouge leaders, at least at the outset in 1999 when ‘the neglected and corrupt nature of the Cambodian court system rendered it unable, even with international assistance, to conduct fair proceedings’ (p 350).
The coverage of accountability for Khmer Rouge atrocities remains the heart of the book and a gem of scholarship. Part III provides an historical overview of Cambodia in 1975–78, the lack of any concerted international response throughout the 1980s and 1990s, and the Cambodian government's policy of absorbing Khmer Rouge defectors into the military and the government itself. The difficulties in classifying Khmer Rouge atrocities as specific international crimes are closely parsed, and the difficulties of now assessing the applicable law at 1975 are rigorously examined. A very cautious assessment of the present internationally assisted proceedings before the hybrid ECCC is offered: ‘However flawed its process, it is underway, trying a handful of officials … A public record of atrocities will eventually emerge, and the guilt of certain individuals will be determined in a process that has the potential to be impartial if the various actors involved allow it to be so’ (p 361). The authors' approach as ‘can do’, practical lawyersFootnote 1 is on display here: the downbeat assessment of the ECCC is accompanied by an acknowledgement that it's presently the only game in town. The practical lawyer's task is to identify the conditions likely to promote success. The authors conclude that successful national prosecutions require an adequate legal and physical infrastructure, trained lawyers, a rule of law tradition that respects judicial independence and popular support (sometimes emboldened by foreign prosecutions) (p 373). Historically, Cambodia has lacked all these factors and their presence in ECCC proceedings may be fragile.
Accountability's conclusions remain balanced and pragmatic. The starting proposition is that ‘full accountability’, while desirable, ‘is not the only value’ and may even be ‘ill-advised’ in transitional/post-conflict societies lacking the infrastructure to conduct complex or mass trials (p 373). The final chapter is a virtual mini-textbook for policy-makers on the spectrum of options available and the conditions for their likely success. The closest thing to an unequivocal good in the authors' view may be investigatory commissions that compile a public record and promote reconciliation. There may, however, be better and worse commissions, and local politics may limit their achievements (pp 265 and 374).
Nonetheless, for a book interested in the ‘promises and pitfalls’ (p xlv) of international accountability there are some glosses a fourth edition might remedy. While considerable space is now devoted to Hague and Geneva law, it seems odd to cover war crimes without any discussion of the cardinal principles of proportionality and discrimination. The only coverage is in the statement that war crimes include: ‘attacks on civilians and civilian objects … including intentional or knowingly disproportionate attacks’ (p 91). While not inaccurate, without further explanation this may mislead the novice or non-lawyer and fail to correct the common misapprehension that humanitarian law prohibits any civilian casualties. Accountability also slightly glosses over the issue of how ICL theorises collective liability. While it may be technically correct to describe article 25(3)(d) of the ICC Statute and the doctrine of Joint Criminal Enterprise (JCE) before the ad hoc Tribunals as both being forms of ‘common-purpose liability’ (pp 143–144), this inadequately addresses the common wisdom that the drafting of article 25(3)(d) prima facie excludes the notorious common-law inspired ‘type 3’ JCE. On the related issue of multiple principal perpetrators, while it is accurate to say that the ‘ICC has defined co-perpetration as requiring joint control by the defendant and at least one other person over the implementation of a criminal agreement’ (p 143), much remains to be unpacked in the words ‘joint control’. Early indications are that the ICC may have a pronounced preference for a stricter causation-based theory of liability inspired by the writings of German scholar Claus Roxin over more elastic common-law approaches. Such themes of judicial law-making and the potential for common-law/civil-law confrontation within ICL are already explored in the expanded coverage of Erdemović (pp 152–154)Footnote 2 and could profitably be further developed elsewhere.
Nonetheless, any such criticisms have to be balanced against Accountability's primary objectives: comprehensiveness and accessibility. Few volumes navigate the pitfalls of either aim half so well, let alone both. Accountability remains a classic in its field.
