In the wake of the increased regulation of armed conflicts, legal interpretation by government lawyers has become crucial in shaping state policies, particularly during times of war. This article explores the scenarios where state policies that have been positively sanctioned by legal professionals potentially amount to international crimes, raising questions of accountability. By examining historical and contemporary instances, the article explores if and to what extent government legal advisers may be considered accomplices in such crimes. It suggests that their responsibility could be framed within the mode of liability of aiding and abetting, as outlined in Article 25(3)(c) of the Rome Statute. Additionally, the article addresses alternative modes of liability specified under Article 25(3)(a) and 25(3)(d). It finally expands to the further consequences of legal advice on the liability of the principal perpetrator, questioning whether the latter may invoke a defence of mistake of law or a breach of the principle of legality. In an attempt to embrace the revolutionary potential of international criminal law, this article aims to make legal interpretation itself the object of scrutiny, through the lenses of international criminal responsibility.
{"title":"Fabricated Legality","authors":"Lavinia Parsi","doi":"10.1093/jicj/mqae017","DOIUrl":"https://doi.org/10.1093/jicj/mqae017","url":null,"abstract":"In the wake of the increased regulation of armed conflicts, legal interpretation by government lawyers has become crucial in shaping state policies, particularly during times of war. This article explores the scenarios where state policies that have been positively sanctioned by legal professionals potentially amount to international crimes, raising questions of accountability. By examining historical and contemporary instances, the article explores if and to what extent government legal advisers may be considered accomplices in such crimes. It suggests that their responsibility could be framed within the mode of liability of aiding and abetting, as outlined in Article 25(3)(c) of the Rome Statute. Additionally, the article addresses alternative modes of liability specified under Article 25(3)(a) and 25(3)(d). It finally expands to the further consequences of legal advice on the liability of the principal perpetrator, questioning whether the latter may invoke a defence of mistake of law or a breach of the principle of legality. In an attempt to embrace the revolutionary potential of international criminal law, this article aims to make legal interpretation itself the object of scrutiny, through the lenses of international criminal responsibility.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141571084","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 empirically assesses the role third-party evidence has played in the Office of the Prosecutor’s (OTP) initiation of an investigation into the Afghanistan Situation at the International Criminal Court (ICC). After finding that most of the evidence upon which the OTP relied in its request to initiate an investigation is from third parties, this article classifies and ranks the categories of third party upon which the OTP relied. Critically analysing the OTP’s use of third-party sources, this article uncovers the way potential biases towards dominant languages, affluent locations and prestigious institutions influence the choice of which information to use as evidence, possibly evincing an epistemic injustice at the OTP. Heeding Naz Modirzadeh’s call to use Third World Approaches to International Law (TWAIL) to empower Global South states, this article concludes with recommendations to the OTP and third parties on how they can maximize their collaboration while avoiding capitulation to the politics of exclusion. In addition, the article’s findings reveal opportunities for stakeholders to enhance evidence collection and use by particular third-party categories in Afghanistan and in similar situations.
{"title":"Epistemic Injustice at the ICC?","authors":"Hayley N Evans, Mahir Hazim","doi":"10.1093/jicj/mqad053","DOIUrl":"https://doi.org/10.1093/jicj/mqad053","url":null,"abstract":"This article empirically assesses the role third-party evidence has played in the Office of the Prosecutor’s (OTP) initiation of an investigation into the Afghanistan Situation at the International Criminal Court (ICC). After finding that most of the evidence upon which the OTP relied in its request to initiate an investigation is from third parties, this article classifies and ranks the categories of third party upon which the OTP relied. Critically analysing the OTP’s use of third-party sources, this article uncovers the way potential biases towards dominant languages, affluent locations and prestigious institutions influence the choice of which information to use as evidence, possibly evincing an epistemic injustice at the OTP. Heeding Naz Modirzadeh’s call to use Third World Approaches to International Law (TWAIL) to empower Global South states, this article concludes with recommendations to the OTP and third parties on how they can maximize their collaboration while avoiding capitulation to the politics of exclusion. In addition, the article’s findings reveal opportunities for stakeholders to enhance evidence collection and use by particular third-party categories in Afghanistan and in similar situations.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141571085","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}
Joint Investigation Teams or JITs are practical mechanisms of cooperation that are established between two or more states to, jointly, conduct criminal investigations. Increasingly used in investigations into core international crimes (war crimes, genocide, crimes against humanity and the crime of aggression), JITs are understudied in the field of international criminal law. This article examines how the procedures outlined in JIT legal frameworks are implemented in practice and assesses whether JITs can respond to the challenges of contemporary international crimes investigations. The article contends that, while JITs introduce some useful new cooperation processes, they fall short on many of their most promising features, which are difficult to implement fully in practice or in fact already exist.
{"title":"Can They Deliver?","authors":"Andrea Furger","doi":"10.1093/jicj/mqae005","DOIUrl":"https://doi.org/10.1093/jicj/mqae005","url":null,"abstract":"Joint Investigation Teams or JITs are practical mechanisms of cooperation that are established between two or more states to, jointly, conduct criminal investigations. Increasingly used in investigations into core international crimes (war crimes, genocide, crimes against humanity and the crime of aggression), JITs are understudied in the field of international criminal law. This article examines how the procedures outlined in JIT legal frameworks are implemented in practice and assesses whether JITs can respond to the challenges of contemporary international crimes investigations. The article contends that, while JITs introduce some useful new cooperation processes, they fall short on many of their most promising features, which are difficult to implement fully in practice or in fact already exist.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141571086","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}
Advocates of the criminalization of ecocide face a dilemma: how to address activities that bring socio-economic benefits and cause severe environmental damage. The solution has generally been seen in the integration of international environmental law (IEL) norms, such as balancing sustainability with development, into the definition of ecocide. This article challenges the uncritical adoption of IEL norms in ecocide debates and explores the socio-ecological implications of relying on those norms in future trials at the International Criminal Court. While this article does not offer a new definition of ecocide, by borrowing insights from critical environmental law and studies of law in the Anthropocene it proposes a new approach for engaging with the question of ecocide, namely, by embracing reflexivity and normativity in legal practice.
{"title":"Ecocide, Sustainable Development and Critical Environmental Law Insights","authors":"Liana Georgieva Minkova","doi":"10.1093/jicj/mqae006","DOIUrl":"https://doi.org/10.1093/jicj/mqae006","url":null,"abstract":"Advocates of the criminalization of ecocide face a dilemma: how to address activities that bring socio-economic benefits and cause severe environmental damage. The solution has generally been seen in the integration of international environmental law (IEL) norms, such as balancing sustainability with development, into the definition of ecocide. This article challenges the uncritical adoption of IEL norms in ecocide debates and explores the socio-ecological implications of relying on those norms in future trials at the International Criminal Court. While this article does not offer a new definition of ecocide, by borrowing insights from critical environmental law and studies of law in the Anthropocene it proposes a new approach for engaging with the question of ecocide, namely, by embracing reflexivity and normativity in legal practice.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141502645","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 International Criminal Court’s reparations mandate is a core feature of the court’s ‘more victim-centric approach’ to criminal justice. While there has been interest in victims’ expectations and satisfaction in regard to the court’s cases, scholars have focused on victims’ participation in trials and not how expectations and disappointment are influenced by investigations, the passage of time, and the promise (explicit or not) of reparations for non-recipient victim communities. This article engages with disappointment theory and economy of expectations to argue that more academic attention needs to be focused on the emotions associated with expectations to increase understanding of the effectiveness of the victim-centric nature of the reparations mandate.
{"title":"The Barlonyo Massacre, Ongwen’s Trial, and ICC Reparations: Reflections on the Dynamics of Expectations and Disappointment","authors":"Kirsten J Fisher","doi":"10.1093/jicj/mqae007","DOIUrl":"https://doi.org/10.1093/jicj/mqae007","url":null,"abstract":"The International Criminal Court’s reparations mandate is a core feature of the court’s ‘more victim-centric approach’ to criminal justice. While there has been interest in victims’ expectations and satisfaction in regard to the court’s cases, scholars have focused on victims’ participation in trials and not how expectations and disappointment are influenced by investigations, the passage of time, and the promise (explicit or not) of reparations for non-recipient victim communities. This article engages with disappointment theory and economy of expectations to argue that more academic attention needs to be focused on the emotions associated with expectations to increase understanding of the effectiveness of the victim-centric nature of the reparations mandate.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141502646","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}
International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.
{"title":"Building An Abolition Movement for International Criminal Law?","authors":"Sophie Rigney","doi":"10.1093/jicj/mqae008","DOIUrl":"https://doi.org/10.1093/jicj/mqae008","url":null,"abstract":"\u0000 International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141360132","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":"Une histoire du droit international De Salamanque à Guantanamo Olivier Corten, Pierre Klein, Gérard Bedoret (illustrator)","authors":"Bianca Acquaviva","doi":"10.1093/jicj/mqae015","DOIUrl":"https://doi.org/10.1093/jicj/mqae015","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141269779","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}
Civil society actors are increasingly turning to international criminal law in response to harmful conduct by the states of the Global North. Legal and strategic concerns have been raised about this practice. It is unclear whether the International Criminal Court will ever be able or willing to effectively respond to the conduct of states, particularly the powerful states of the Global North. However, there is growing recognition that the expressive power of international criminal law may be strategically used beyond the courtroom. Drawing on criminological scholarship, this article suggests that international criminal law may offer potential in resisting the state crimes of the Global North. International criminal law provides civil society with a way to sociologically criminalize the state from below and challenge the hegemonic beliefs that enable state crime. Such expressive advocacy might ultimately play a role in expanding legal understandings of what constitutes an international crime to include the conduct of the Global North.
{"title":"Resisting the State Crimes of the Global North","authors":"Natalie Hodgson","doi":"10.1093/jicj/mqae010","DOIUrl":"https://doi.org/10.1093/jicj/mqae010","url":null,"abstract":"Civil society actors are increasingly turning to international criminal law in response to harmful conduct by the states of the Global North. Legal and strategic concerns have been raised about this practice. It is unclear whether the International Criminal Court will ever be able or willing to effectively respond to the conduct of states, particularly the powerful states of the Global North. However, there is growing recognition that the expressive power of international criminal law may be strategically used beyond the courtroom. Drawing on criminological scholarship, this article suggests that international criminal law may offer potential in resisting the state crimes of the Global North. International criminal law provides civil society with a way to sociologically criminalize the state from below and challenge the hegemonic beliefs that enable state crime. Such expressive advocacy might ultimately play a role in expanding legal understandings of what constitutes an international crime to include the conduct of the Global North.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141198367","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 analyses the increasingly pervasive enrolment of visual materials in the evolution and contestation of international criminal justice. We posit that this emerging field of ‘visual advocacy’ is transforming how international criminal law is produced and perceived. Visual advocacy stands to complement and reinforce, but also to challenge and subvert conventional norms and narratives. To probe how these dynamics play out in practice, we delve into the role of imagery in the ongoing controversy over the international criminalization of severe environmental destruction as ‘ecocide’. By articulating claims to non-human victimhood, the ecocide campaign pioneers an ecocentric vision that disrupts the anthropocentric aesthetics of international criminal law. Through a visual content analysis of 68 images posted by the movement organization Stop Ecocide International on X/Twitter and Instagram over the course of 2022, we explore how victimhood is depicted and concretized, how such imageries are framed, and how they appeal to legal authority. While our analysis underlines the critical potential of visual media as an epistemically emancipatory vehicle, it also evinces enduring ties to reductionist stereotypes and well-worn ‘aesthetic biases’.
{"title":"Polar Bears and Gavels","authors":"Daniel Bertram, George Hill","doi":"10.1093/jicj/mqae014","DOIUrl":"https://doi.org/10.1093/jicj/mqae014","url":null,"abstract":"This article analyses the increasingly pervasive enrolment of visual materials in the evolution and contestation of international criminal justice. We posit that this emerging field of ‘visual advocacy’ is transforming how international criminal law is produced and perceived. Visual advocacy stands to complement and reinforce, but also to challenge and subvert conventional norms and narratives. To probe how these dynamics play out in practice, we delve into the role of imagery in the ongoing controversy over the international criminalization of severe environmental destruction as ‘ecocide’. By articulating claims to non-human victimhood, the ecocide campaign pioneers an ecocentric vision that disrupts the anthropocentric aesthetics of international criminal law. Through a visual content analysis of 68 images posted by the movement organization Stop Ecocide International on X/Twitter and Instagram over the course of 2022, we explore how victimhood is depicted and concretized, how such imageries are framed, and how they appeal to legal authority. While our analysis underlines the critical potential of visual media as an epistemically emancipatory vehicle, it also evinces enduring ties to reductionist stereotypes and well-worn ‘aesthetic biases’.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141198118","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 examines the role that civil society has played in pursuing corporate accountability for international crimes. The article is divided into five main parts. Following a general introduction in Section 1, Section 2 sets forth the definitions used throughout this article and the methodology used to carry out the research. Section 3 covers cases at international tribunals, beginning with an overview of prosecutions of corporate executives at the International Military Tribunal at Nuremberg and proceeding to an examination of civil society engagement with the International Criminal Court in cases involving corporate actors. Section 4 analyses cases brought by civil society actors in domestic courts, focusing on criminal cases filed in France and civil cases filed in the USA. This section of the article reviews cases from the USA that have narrowed corporate liability for international crimes and compares them with similarly situated cases filed in France, which has become a forum of choice for victims seeking corporate criminal accountability. In Section 5, we conclude that civil society’s pursuit of corporate accountability in domestic courts has ensured that a greater number and a wider range of actors are held to account, thereby complementing the work of international tribunals, which comparatively can try only a small number of cases, and has offered a ray of hope to victims who wish to see accountability for international crimes.
{"title":"The Role of Civil Society in Promoting Corporate Accountability for International Crimes","authors":"John M B Balouziyeh, Stephen J Rapp","doi":"10.1093/jicj/mqae009","DOIUrl":"https://doi.org/10.1093/jicj/mqae009","url":null,"abstract":"\u0000 This article examines the role that civil society has played in pursuing corporate accountability for international crimes. The article is divided into five main parts. Following a general introduction in Section 1, Section 2 sets forth the definitions used throughout this article and the methodology used to carry out the research. Section 3 covers cases at international tribunals, beginning with an overview of prosecutions of corporate executives at the International Military Tribunal at Nuremberg and proceeding to an examination of civil society engagement with the International Criminal Court in cases involving corporate actors. Section 4 analyses cases brought by civil society actors in domestic courts, focusing on criminal cases filed in France and civil cases filed in the USA. This section of the article reviews cases from the USA that have narrowed corporate liability for international crimes and compares them with similarly situated cases filed in France, which has become a forum of choice for victims seeking corporate criminal accountability. In Section 5, we conclude that civil society’s pursuit of corporate accountability in domestic courts has ensured that a greater number and a wider range of actors are held to account, thereby complementing the work of international tribunals, which comparatively can try only a small number of cases, and has offered a ray of hope to victims who wish to see accountability for international crimes.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2024-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141110543","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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