Lawfare Daily: ‘The Criminal State’ with Lawrence Douglas

In this episode of The Lawfare Podcast, Tyler McBrien interviews Lawrence Douglas, James J. Grofeld Professor of Law, Jurisprudence and Social Thought at Amherst College, about his new book, *The Criminal State: War, Atrocity, and the Dream of International Justice*. Douglas challenges the conventional narrative of international criminal law’s development, arguing that the field was shaped not by a steady evolution but by a pivotal rupture—specifically, the shift from the 'aggression paradigm' of Nuremberg to the 'atrocity paradigm' that prioritizes crimes like genocide and crimes against humanity. He traces this shift through the Nuremberg trials, the Eichmann trial in Jerusalem, and post-war German legal debates, emphasizing how the concept of the 'criminal state'—a state whose institutions are systematically corrupted by criminality—reshapes our understanding of accountability. The episode explores the profound challenges this paradigm shift poses: the belatedness of prosecutions, universal jurisdiction, and the limits of deterrence. Despite these difficulties, Douglas maintains cautious optimism, highlighting the symbolic, historical, and transitional value of atrocity trials, even as powerful states often evade justice. He concludes with a measured hope that the law, however imperfect, still holds the potential to constrain even the most powerful actors. Key takeaways include: 1) The Nuremberg trials were primarily focused on war of aggression, not the Holocaust, which became a secondary concern; 2) The Eichmann trial marked a turning point by elevating crimes against humanity as sui generis, not mere byproducts of war; 3) The 'criminal state' concept helps explain why traditional legal frameworks fail when the state itself is the perpetrator; 4) Atrocity trials, while limited in scope, serve vital didactic and symbolic functions; 5) Universal jurisdiction and the absence of statute of limitations enable long-delayed prosecutions, but raise questions about justice and proportionality; 6) The 'responsibility to protect' doctrine, while well-intentioned, risks humanitarian intervention becoming a tool of geopolitical power; 7) Despite systemic failures, the fact that figures like Milosevic, Karadzic, and Mladic were prosecuted shows that international justice is not entirely illusory; 8) The field remains 'one-tenth full'—imperfect but not hopeless.