ABSTRACT
This chapter explores the narratives of justification at various junctures from the late nineteenth century onwards and in so doing, it looks beyond the 'commonplace view that there are a single, homogeneous periods when "international law" has been either this or that'. The practice of war crimes trials indicate how institutions have constructed particular 'history-making practices' that reflect the debate between 'two ways of thinking about history', which in turn has 'infected jurisdictional rules'. Kennedy argues that in the conventional story of the field's history, the nineteenth century is remembered in two ways: as the philosophical struggle between naturalism and positivism, and 'as a classical period' that established 'basic doctrinal and philosophical underpinnings for international law – sovereignty, the state – only to be eroded, rejected and replaced by twentieth century international law'. It also recognized a right of every 'Christian state' to a complementary or subsidiary jurisdiction of the state with custody of the alleged offender.
