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What is Sexual about Sexual Violence? 性暴力是什么?
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-05-31 DOI: 10.1093/jicj/mqad019
Ciara Laverty
Responding to the wider concern with how to understand the connections between sex and violence in the context of conflict-related sexual violence, this article examines how international criminal law constructs what is sexual about sexual violence. The article adopts a narrative expressivist approach to the knowledge generating effects of international criminal proceedings, using a discourse analysis of judgments and trial transcripts to demonstrate how ‘the sexual’ in sexual violence emerges in the judgments of international criminal courts primarily as a social question, in how sexual violence injures the conjugal order of the community to which victims belong. Drawing on the concept of sexual subjectivity, the article nevertheless reveals how some testimonies during the proceedings of international criminal trials go beyond this dominant narrative, offering instead a perspective that captures the specifically sexualized harm inflicted on individuals by sexual violation. The article ultimately exposes how the dominant narrative of sexual violence that emerges through the judgments of international criminal courts tends to overlook the injury to individual sexual subjectivity inflicted by sexual violence and, in doing so, functions to discount victims’ full subjectivity, including in their sexual lives.
在与冲突有关的性暴力的背景下,如何理解性与暴力之间的联系,这篇文章回应了更广泛的关注,探讨了国际刑法如何构建性暴力的性属性。本文采用叙事表现主义的方法来研究国际刑事诉讼的知识产生效果,使用对判决和审判记录的话语分析来展示性暴力中的“性”如何主要作为一个社会问题出现在国际刑事法院的判决中,即性暴力如何损害受害者所在社区的婚姻秩序。然而,本文借鉴了性主体性的概念,揭示了国际刑事审判程序中的一些证词如何超越了这种占主导地位的叙述,而是提供了一种视角,捕捉到性侵犯对个人造成的具体的性化伤害。这篇文章最终揭示了通过国际刑事法院的判决而出现的关于性暴力的主要叙述是如何忽视性暴力对个人性主体性造成的伤害的,这样做的作用是贬低受害者的充分主体性,包括在他们的性生活中。
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引用次数: 0
Conscription to Fight a War of Aggression under International Criminal Law 国际刑法下的侵略战争征兵制度
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-05-17 DOI: 10.1093/jicj/mqad016
N. Boister
The criminalization of the unlawful use of force in international relations is not usually linked to conscription of an army to fight such a war. However, historical precedent in the Nuremberg and Tokyo International Military Tribunals established that conscription was part of the common plan to wage a war of aggression. After a brief history of conscription and its justifications, this article examines that precedent and then analyses how it could be put to use in a prosecution of the crime of aggression under the Rome Statute of the International Criminal Court. Finally, it argues that there is a normative case for the inclusion of conscription within the scope of the crime of aggression because of the harm done to both the conscripts and the state and people of the place they invade.
在国际关系中对非法使用武力的定罪通常与征召军队参加此类战争无关。然而,纽伦堡和东京国际军事法庭的历史先例表明,征兵是发动侵略战争的共同计划的一部分。在简要介绍了征兵及其理由之后,本文审查了这一先例,然后分析了如何根据《国际刑事法院罗马规约》将其用于起诉侵略罪。最后,它认为,有一个规范的理由将征兵纳入侵略罪的范围,因为征兵对其侵略地的国家和人民都造成了伤害。
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引用次数: 0
Prosecuting the Crime against Humanity of Apartheid 起诉种族隔离的危害人类罪
3区 社会学 Q1 LAW Pub Date : 2023-05-01 DOI: 10.1093/jicj/mqad023
Gerhard Kemp, Windell Nortje
Abstract Apartheid is a crime against humanity, yet no person has ever been prosecuted for this crime. In 2021 two individuals were indicted in South Africa for the crime of apartheid. This is an historic first in the country which gave the policy of apartheid its name and material content. The indictment is, however, also a reminder that the non-prosecution of apartheid is a legal and moral issue to be understood in the context of South Africa’s transition from apartheid to democracy. Furthermore, the indictment, while historic and of international significance, concerns constitutional, procedural and prosecutorial issues that illustrate the complexities of the application of international criminal law in domestic criminal justice systems. This contribution argues that all these factors should be acknowledged and analysed. Ultimately, and despite the many obstacles and complexities, it is submitted that it is right to indict individuals who, through their crimes, made the apartheid system possible even if they were not in positions of leadership.
种族隔离是一种危害人类的罪行,但从来没有人因这一罪行而受到起诉。2021年,两个人因种族隔离罪在南非被起诉。这是南非历史上的第一次,它赋予了种族隔离政策以名称和实质内容。然而,起诉书也提醒人们,不起诉种族隔离是一个法律和道德问题,必须在南非从种族隔离向民主过渡的背景下加以理解。此外,起诉书虽然具有历史和国际意义,但涉及宪法、程序和起诉问题,这些问题说明了在国内刑事司法制度中适用国际刑法的复杂性。这篇文章认为,所有这些因素都应该得到承认和分析。最后,尽管存在许多障碍和复杂情况,但有人认为,起诉那些通过其罪行使种族隔离制度成为可能的个人是正确的,即使他们没有担任领导职务。
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引用次数: 0
Criminalizing Acts of Rebel Governance as War Crimes 将反政府统治行为定为战争罪
3区 社会学 Q1 LAW Pub Date : 2023-05-01 DOI: 10.1093/jicj/mqad026
Diletta Marchesi
Abstract This article explores whether it is appropriate on legal and policy grounds to criminalize as war crimes the acts of governance performed by non-state armed groups controlling territory. Using the administration of justice by armed groups and the Al Hassan case before the International Criminal Court as a reference point, it sheds light on the problems raised by the adoption of an overly broad definition of the war crimes’ nexus to the armed conflict. When the definition of ‘nexus’ is stretched to cover also rebel governance activities, the outcome is at odds with international humanitarian law’s provisions and nature. This approach also has detrimental consequences, including exposing non-state armed groups to unfair and asymmetric criminalization. This article submits that acts of rebel governance should not be criminalized as war crimes — other legal frameworks may be more suitable from a legal and policy standpoint to compel armed groups to comply with international standards and engage with them fruitfully.
摘要本文探讨了将非国家武装团体控制领土的治理行为定为战争罪在法律和政策上是否合适。它以武装团体的司法行政和国际刑事法院审理的哈桑案为参照点,阐明了对战争罪行与武装冲突的关系采用过于宽泛的定义所引起的问题。当“联系”的定义被扩展到包括叛军治理活动时,其结果与国际人道法的规定和性质不一致。这种做法也有不利后果,包括使非国家武装团体受到不公平和不对称的刑事定罪。该条提出,不应将反叛统治行为定为战争罪——从法律和政策的角度来看,其他法律框架可能更适合迫使武装团体遵守国际标准并与之进行富有成效的接触。
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引用次数: 0
Darryl Robinson, Justice in Extreme Cases. Criminal law Theory Meets International Criminal Law 达瑞尔·罗宾逊,极端案件中的正义。刑法理论与国际刑法
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-04-26 DOI: 10.1093/jicj/mqad014
Niccolò Pons
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引用次数: 0
Relocation Issues of Released and Acquitted at International Criminal Courts and Tribunals 国际刑事法院和法庭释放和无罪释放的重新安置问题
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-04-06 DOI: 10.1093/jicj/mqad012
Cécile Lecolle
The study of the treatment of released and acquitted persons by international courts and tribunals (ICTs) has been one of the most neglected aspects of international criminal justice. The system rests on the cooperation of states with the ICTs. However, this cooperation when it exists, often ceases when the trial has ended. Regarding the objective of delivering justice, states appear to have either forgotten or refused to accept that both acquittals and the eventual release of convicted individuals are part of the process of criminal justice. Even states committed to international justice have denied protection against extradition to unsafe countries for acquitted and released persons, or declined to become host countries, grant asylum requests or take any steps to offer these former defendants and convicted persons a dignified life. This article explores the international legal frameworks applicable to the relocation of persons released or acquitted by ICTs. It specifically looks into the cases of the ad hoc tribunals and the International Criminal Court (ICC), the states parties’ general obligation under the statutes and rules to cooperate with the ICTs, and relevant principles of refugee law. The article explores some of the most recent issues relating to relocation that have shaken international criminal justice. At the International Criminal Tribunal for Rwanda, the recent striking failure to obtain the relocation of nine acquitted and released persons is examined as an emblematic and appalling example of the violation of these persons’ fundamental human rights, and the refusal of the international community to pursue justice in all its aspects. At the ICC, important issues of relocation have already arisen for acquitted and released persons, and the Court will urgently need agreements in this area. Importantly, it is necessary to recognize that, to protect the rights of these former defendants, the practical work of defence lawyers continues long after their clients’ release.
国际法院和法庭对获释和无罪释放人员待遇的研究一直是国际刑事司法中最被忽视的方面之一。该系统建立在各国与信通技术的合作之上。然而,这种合作在存在时,往往在审判结束时停止。关于伸张正义的目标,各国似乎忘记或拒绝接受无罪释放和最终释放被定罪者都是刑事司法程序的一部分。即使是致力于国际司法的国家也拒绝为无罪释放者提供保护,使其免于被引渡到不安全的国家,或拒绝成为东道国,拒绝批准庇护请求,或拒绝采取任何措施为这些前被告和被定罪者提供有尊严的生活。本文探讨了适用于因信息和通信技术而被释放或无罪释放人员重新安置的国际法律框架。它具体探讨了特设法庭和国际刑事法院的案件、缔约国根据规约和规则与信息和通信技术合作的一般义务以及难民法的相关原则。这篇文章探讨了一些最近与搬迁有关的问题,这些问题动摇了国际刑事司法。在卢旺达问题国际刑事法庭,最近9名被无罪释放和释放的人未能搬迁,这一事件被视为侵犯这些人的基本人权以及国际社会拒绝从各个方面伸张正义的一个典型和骇人听闻的例子。在国际刑院,已经出现了无罪释放者和获释者搬迁的重要问题,国际刑院迫切需要在这方面达成协议。重要的是,必须认识到,为了保护这些前被告的权利,辩护律师的实际工作在其当事人获释后很长一段时间仍在继续。
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引用次数: 0
Terminal Illness and Compassionate Release 绝症和体恤释放
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-04-02 DOI: 10.1093/jicj/mqad013
Róisín Mulgrew
International prisoners can apply for early release. However, terminally ill prisoners seeking release in the international criminal justice system face significant legal and practical obstacles. This is particularly the case for prisoners convicted by the International Criminal Court (ICC): there is currently no framework for granting compassionate release prior to serving the statutory required amount of a sentence. To build a foundation for recommendations for the creation of a system of compassionate release at the ICC, this article critically examines the systems used to grant early release to terminally ill persons in international (International Residual Mechanism for Criminal Tribunals) and national criminal law, with a particular focus on how these systems operate for prisoners that have served less than the typical eligibility requirement for release. This article sets out a normative basis for creating a novel and distinct form of release at the ICC: a compassionate system based, not on penological justifications, but on the impossibility of continued detention on human rights grounds. It concludes with recommendations for essential substantial and procedural elements for this system and means of incorporating it into the current legal framework.
国际囚犯可以申请提前释放。然而,在国际刑事司法系统中寻求释放的身患绝症的囚犯面临着重大的法律和实际障碍。对于被国际刑事法院定罪的囚犯来说尤其如此:目前没有在法定刑期之前给予同情释放的框架。为了为国际刑事法院建立同情释放制度的建议奠定基础,本文严格审查了国际(刑事法庭余留事项国际处理机制)和国家刑法中用于提前释放绝症患者的制度,特别关注这些系统如何为服刑时间低于典型释放资格要求的囚犯运行。这一条为在国际刑事法院创造一种新颖而独特的释放形式提供了规范性基础:一种同情制度,其基础不是刑罚上的正当理由,而是基于基于人权理由不可能继续拘留。报告最后就这一制度的实质性和程序性要素以及将其纳入现行法律框架的方法提出了建议。
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引用次数: 0
The Aftermath of Dutch International Crimes Cases 荷兰国际刑事案件的余波
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-03-27 DOI: 10.1093/jicj/mqad011
M. P. Bolhuis, Joris van Wijk
This article describes the scale and nature of international crimes prosecutions in the Netherlands and maps the different scenarios that (may) unfold when criminal proceedings against a migrant suspect of international crimes conclude after acquittal or completion of a sentence. The article is based on an analysis of academic literature, Dutch legislation and case law, policy documents, and media reports. Since 1997, 20 individuals have been prosecuted for international crimes in the Netherlands, 16 of whom were naturalized or dual Dutch citizens, or non-citizens. The article concludes that while the Dutch ‘No Safe Haven’ policy — which we propose consists of a four-pillar model covering criminal law, extradition law, immigration/refugee law, and nationality law — has the potential to reduce impunity for international crimes, it likely results in undesirable, unremovable, and unaccounted for individuals.
这篇文章描述了荷兰国际犯罪起诉的规模和性质,并描绘了对国际犯罪移民嫌疑人的刑事诉讼在宣判无罪或刑满后结束时可能出现的不同情况。本文基于对学术文献、荷兰立法和判例法、政策文件和媒体报道的分析。自1997年以来,有20人在荷兰因国际罪行被起诉,其中16人是归化或双重荷兰公民或非公民。文章的结论是,尽管荷兰的“无避风港”政策——我们提出的由涵盖刑法、引渡法、移民/难民法和国籍法的四大支柱模式组成——有可能减少国际犯罪的有罪不罚现象,但它可能会导致不受欢迎、不受欢迎和下落不明的个人。
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引用次数: 0
Life After Conviction at the International Criminal Tribunal for the former Yugoslavia 前南斯拉夫问题国际刑事法庭定罪后的生活
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-03-07 DOI: 10.1093/jicj/mqad010
Lina Strupinskienė
Of the 92 persons convicted at the International Criminal Tribunal for the former Yugoslavia (ICTY), 60 have already served their sentences and been released. Even though in post-conflict environments, the public behaviour of perpetrators can help counter (atrocity crime) denial, establish an authoritative version of the truth and contribute to sustainable reconciliation, we still know little about what happens once they return to their communities. This article is one of the first attempts to systematically map and understand what pathways the ICTY convicts take after release, and why. It finds that those who promote nationalist interpretations of the past and deny their responsibility and involvement in crimes are often hailed by receptive domestic audiences across the Western Balkans. They successfully use certain support networks, such as dominant political parties or military and war veterans’ organizations, to take back their place in public life. On the other hand, those convicts who have admitted their guilt and responsibility and do not promote a nationalist interpretation of the past often find themselves ostracized, living in poverty and seclusion.
在前南斯拉夫问题国际刑事法庭(前南问题国际法庭)被定罪的92人中,有60人已经服刑并获释。尽管在冲突后环境中,犯罪者的公开行为有助于对抗(暴行犯罪)否认,建立权威的真相,并有助于可持续的和解,但我们仍然对他们返回社区后会发生什么知之甚少。这篇文章是系统地绘制和了解前南问题国际法庭罪犯获释后走什么路以及为什么走的第一次尝试之一。研究发现,那些宣扬对过去的民族主义解释并否认自己的责任和参与犯罪的人,经常受到西巴尔干地区乐于接受的国内观众的欢迎。他们成功地利用某些支持网络,如占主导地位的政党或军队和退伍军人组织,夺回了他们在公共生活中的地位。另一方面,那些承认自己的罪行和责任,不提倡对过去进行民族主义解释的罪犯往往发现自己受到排斥,生活在贫困和与世隔绝的环境中。
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引用次数: 0
There is Something Special about War Criminals …  战犯有一些特别之处…
IF 0.9 3区 社会学 Q1 LAW Pub Date : 2023-03-01 DOI: 10.1093/jicj/mqad006
Barbora Holá, Maja Munivrana
This article assesses how the rehabilitation of perpetrators of international crimes is being constructed and evaluated at the domestic level, in particular in Croatia, and how it compares to international practice at the International Criminal Tribunal for the former Yugoslavia (ICTY) or International Residual Mechanism for Criminal Tribunals (IRMCT). The analysis is based on a convenience sample of early release decisions issued by the Croatian judiciary and the most recent early release decisions issued by the IRMCT. Up until very recently, rehabilitation of war criminals has been approached through a rather conventional prism, both at the ICTY/IRMCT and domestically. The most recent IRMCT early release decisions, however, developed a sui generis approach focusing primarily on an offender’s critical reflection on crimes, gravity of the offence and views of the larger community. At the same time, the Croatian approach to assessing rehabilitation remained centred around the perceived risk of reoffending. Due to inconsistencies in incorporating the various factors, however, there seems to be double standards being applied along ethnic lines. In this article, we analyse and contrast rehabilitation assessments and early release practices at the ICTY/IRCMT and Croatia and ask the proverbial question whether there is anything special about rehabilitating war criminals.
本文评估了如何在国内一级,特别是在克罗地亚,构建和评估国际罪行肇事者的康复工作,以及与前南斯拉夫问题国际刑事法庭(前南问题国际法庭)或刑事法庭余留事项国际处理机制的国际做法相比如何。该分析基于克罗地亚司法部门发布的提前释放决定和IRMCT发布的最新提前释放决定的便利样本。直到最近,无论是在前南问题国际法庭/伊斯兰共和国军事法庭,还是在国内,对战犯的改造都是通过一种相当传统的方式进行的。然而,IRMCT最近的提前释放决定制定了一种独特的方法,主要关注罪犯对犯罪的批判性反思、犯罪的严重性和广大社区的观点。与此同时,克罗地亚评估康复的方法仍然围绕着重新犯罪的风险。然而,由于在纳入各种因素方面的不一致性,似乎存在着基于种族的双重标准。在这篇文章中,我们分析和对比了前南问题国际法庭/国际刑事司法法庭和克罗地亚的改造评估和提前释放做法,并提出了一个众所周知的问题,即改造战犯是否有什么特别之处。
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引用次数: 0
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Journal of International Criminal Justice
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