{"title":"Rosario Salvatore Aitala, Diritto internazionale penale","authors":"Flavia Patanè","doi":"10.1093/jicj/mqac031","DOIUrl":"https://doi.org/10.1093/jicj/mqac031","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48902679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.
{"title":"The Control Theory as Multidimensional Concept","authors":"M. Cupido","doi":"10.1093/jicj/mqac028","DOIUrl":"https://doi.org/10.1093/jicj/mqac028","url":null,"abstract":"\u0000 The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44465683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the issue of leadership criminality with a view to construing it as ordering liability under Article 25(3)(b) of the ICC Statute. It outlines the requirements of ordering liability as they can be deduced from the practice of international criminal tribunals and the International Criminal Court. In a case study, it applies these criteria to the conduct of Bosco Ntaganda to ascertain whether he could have been convicted for ordering crimes. Based on the case study, the article discusses whether ordering, as a form of criminal responsibility, should be preferred to the theory of indirect (co-)perpetration.
{"title":"Ordering as an Alternative to Indirect Co-Perpetration","authors":"J. Block","doi":"10.1093/jicj/mqac030","DOIUrl":"https://doi.org/10.1093/jicj/mqac030","url":null,"abstract":"\u0000 This article explores the issue of leadership criminality with a view to construing it as ordering liability under Article 25(3)(b) of the ICC Statute. It outlines the requirements of ordering liability as they can be deduced from the practice of international criminal tribunals and the International Criminal Court. In a case study, it applies these criteria to the conduct of Bosco Ntaganda to ascertain whether he could have been convicted for ordering crimes. Based on the case study, the article discusses whether ordering, as a form of criminal responsibility, should be preferred to the theory of indirect (co-)perpetration.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44346602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.
{"title":"Indirect Co-Perpetration and the Control Theory","authors":"Philipp Osten","doi":"10.1093/jicj/mqac029","DOIUrl":"https://doi.org/10.1093/jicj/mqac029","url":null,"abstract":"\u0000 In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48685419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transitional justice practices in the Arab World have unfolded in ways that both reinforce the value of the critical turn in transitional justice while also underscoring its limitations. Used as both a tool of repression and of resistance, transitional justice practices in the Arab World mark a significant development in the field by expanding its dynamic processes across time and space. Ongoing violence and the resurgence of authoritarian rule have necessitated a transitional justice process that aims to help deliver on the revolutionary objectives of the Arab uprisings themselves: to uproot decades of structural oppression and authoritarian rule. This article begins with a brief review of the critical turn in transitional justice and how it presents questions, limitations, and opportunities with regard to key transitional justice practices in the Arab World. Next, it will examine how such practices have made the state and its institutions as object of transitional justice as opposed to its enforcer. The article will then address the potentials of universal jurisdiction as a transitional justice strategy that has just as much to do with a broader political project, such as weakening an authoritarian regime, as it does with the narrower goal of putting regime officials on trial. Finally, I argue that transitional justice in the Arab World is a tool of resistance to colonial and neo-colonial powers, making it an important engine of Third World Approaches to International Law praxis.
{"title":"Transitional Justice as Repression and Resistance","authors":"Noha Aboueldahab","doi":"10.1093/jicj/mqac027","DOIUrl":"https://doi.org/10.1093/jicj/mqac027","url":null,"abstract":"\u0000 Transitional justice practices in the Arab World have unfolded in ways that both reinforce the value of the critical turn in transitional justice while also underscoring its limitations. Used as both a tool of repression and of resistance, transitional justice practices in the Arab World mark a significant development in the field by expanding its dynamic processes across time and space. Ongoing violence and the resurgence of authoritarian rule have necessitated a transitional justice process that aims to help deliver on the revolutionary objectives of the Arab uprisings themselves: to uproot decades of structural oppression and authoritarian rule. This article begins with a brief review of the critical turn in transitional justice and how it presents questions, limitations, and opportunities with regard to key transitional justice practices in the Arab World. Next, it will examine how such practices have made the state and its institutions as object of transitional justice as opposed to its enforcer. The article will then address the potentials of universal jurisdiction as a transitional justice strategy that has just as much to do with a broader political project, such as weakening an authoritarian regime, as it does with the narrower goal of putting regime officials on trial. Finally, I argue that transitional justice in the Arab World is a tool of resistance to colonial and neo-colonial powers, making it an important engine of Third World Approaches to International Law praxis.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44211611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/jicj/mqac004","DOIUrl":"https://doi.org/10.1093/jicj/mqac004","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60866559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/jicj/mqab077","DOIUrl":"https://doi.org/10.1093/jicj/mqab077","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60866796","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/jicj/mqac019","DOIUrl":"https://doi.org/10.1093/jicj/mqac019","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60867097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/jicj/mqac023","DOIUrl":"https://doi.org/10.1093/jicj/mqac023","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60867684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/jicj/mqac015","DOIUrl":"https://doi.org/10.1093/jicj/mqac015","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60867324","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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