International criminal justice and the obstinacy of hope
Carlos Gil Gandía
Professor of Public International Law and International Relations
University of Murcia
There is something deeply disconcerting about the fact that, having devoted a good part of the last century to building a legal order intended to prevent the repetition of the worst atrocities in history, we find ourselves once again debating whether force may prevail over law, whether States may evade obligations they have freely assumed, or whether accountability for the most serious crimes ultimately depends on the identity of those who commit them. It is not that we have returned to the past, although at times it may seem so. It is that perhaps we never quite left it behind.
I have always been wary of grand words when they serve to conceal the very thing they claim to explain. Especially when peace, security or justice are invoked to justify conduct that would hardly withstand a dispassionate legal examination. There is a persistent temptation in politics, and particularly in international politics, to turn the goodness of a cause into an advance justification of the means employed to achieve it. History is filled with atrocities committed in the name of purposes deemed superior. And perhaps one of the most important achievements of contemporary international law lies precisely in having established that there are forms of conduct that no purpose, however lofty it may be proclaimed, can justify.
This conviction, seemingly elementary, represents a break with centuries of political thought and of the articulation of a State-centric international law. It means recognising that sovereignty is not a licence for arbitrariness, that raison d’état is not a general ground for exoneration, and that war, even when presented as necessary (although none is, from a humane human perspective), does not suspend the fundamental requirements of humanity. But it also means something more difficult: accepting that these requirements bind everyone, including those with whom we sympathise, those on whom we depend and those whose interests we too easily mistake for our own.
International justice in general, and international criminal justice in particular, was born of this aspiration to universality, even though its history has been marked by a contradiction that is hard to conceal. Nuremberg represented an extraordinary step forward by establishing individual criminal responsibility for international crimes. Yet that justice was also victors’ justice. The contradiction did not necessarily invalidate its principles, but it revealed a shortcoming that is still with us: the gap between the universality of the norm and the inequality of the conditions under which it is applied.
Since then we have created international criminal tribunals, recognised individual responsibility, developed cooperation mechanisms and established a permanent international criminal jurisdiction. That is no small achievement. It would be unfair to ignore it; but nor would it be reasonable to mistake the existence of institutions for the disappearance of the political obstacles that condition their functioning. International criminal justice still depends, far too often, on the will of the very States whose conduct it ought to subject to scrutiny.
Here a particularly uncomfortable question arises. For a long time, we have equated overcoming impunity with punishing those responsible for international crimes. It was necessary to do so. Individual responsibility prevents the abstraction of the State from dissolving the responsibility of those who order, organise or carry out atrocities. But this individualisation can also produce an unintended effect: causing the political, administrative and collective structures that made the commission of the crimes possible to vanish behind the figure of the accused.
For serious crimes are rarely the exclusive result of isolated individual decisions. They require organisations, obedience, resources, procedures and, frequently, the participation or tolerance of entire institutions. Punishing the person responsible without examining the conditions that made their actions possible may satisfy an indispensable demand of justice, but it will not necessarily prevent repetition. Individual criminal responsibility and the international responsibility of the State are not mutually exclusive; they respond to different logics and must complement each other.
In this context, the negotiation of an international convention on the prevention and punishment of crimes against humanity takes on singular importance. It is surprising that, after so many decades of development of international criminal law, we still lack a specific universal treaty devoted to these crimes, comparable in its conventional function to the existing instruments on genocide or torture. The draft prepared by the International Law Commission and the diplomatic process currently under way offer an opportunity to correct this anomaly.
Yet its true significance does not lie solely in adding new provisions to the international legal order. It lies in bringing into the sphere of States’ ordinary obligations what has, for far too long, depended on exceptional responses. Preventing, investigating, prosecuting, cooperating, extraditing or providing mutual legal assistance should not be decisions subordinated to the convenience of each particular moment, but normal expressions of a shared legality. The adoption of a convention on crimes against humanity would, in this sense, be a particularly significant step. Not because a new treaty can by itself guarantee an end to impunity, nor because we should mistake the proclamation of norms for compliance with them, but because it would help to reduce the legal spaces in which impunity still finds refuge. It would also be a way of recalling that the fight against impunity cannot be left solely to the occasional intervention of international courts, but requires permanent commitments on the part of States. And perhaps it is precisely there, in this will to turn the demands of justice into shared obligations, that international law may find part of the authority it so badly needs today.
International justice cannot, moreover, be reduced to the holding of criminal trials. Its relationship with peace is more complex. A judgment can acknowledge victims, establish facts and attribute responsibility; but it does not on its own rebuild a devastated society or eliminate the political conditions that made the violence possible. And yet a peace built on the deliberate denial of crimes hardly deserves the name. It may represent a cessation of hostilities, even an immediate necessity, but it will leave intact the possibility that injustice may once again present itself as an inevitable fate.
That is why it is especially significant that the 2026 Nobel Peace Prize has been awarded to the South African jurist Navi Pillay, whose career spans some of the defining experiences of contemporary international criminal justice: the struggle against apartheid, the international criminal tribunals, the protection of human rights and the demand for accountability for atrocities. It does not seem a coincidental choice. At a time when international judicial institutions are subject to pressure and disparagement, the prize can be read as a deliberate affirmation of the primacy of the international legal order over impunity.
What has been rewarded is not a military victory, a negotiation among the powerful or the uncertain promise of reconciliation. What has been recognised is a career devoted to demonstrating that peace needs law, and that law loses its meaning when it gives up on demanding accountability. It is also a reminder that justice cannot depend on the nationality of the victims or on the international standing of their perpetrators.
Perhaps we should abandon the naive expectation that international law can definitively abolish violence. No legal order has ever achieved such a feat. Its function is less grandiose, but perhaps more necessary: to prevent force from becoming a justification in itself, to prevent the victor from unilaterally determining what is just, and to prevent the suffering of victims from disappearing beneath the language of political necessity.
International justice does not guarantee peace. But without justice, peace risks becoming another name for impunity. And that difference, which some consider secondary in the face of the urgencies of power, is precisely the one that deserves to go on being defended.
