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.
{"title":"Relocation Issues of Released and Acquitted at International Criminal Courts and Tribunals","authors":"Cécile Lecolle","doi":"10.1093/jicj/mqad012","DOIUrl":"https://doi.org/10.1093/jicj/mqad012","url":null,"abstract":"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.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44318100","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 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.
{"title":"Terminal Illness and Compassionate Release","authors":"Róisín Mulgrew","doi":"10.1093/jicj/mqad013","DOIUrl":"https://doi.org/10.1093/jicj/mqad013","url":null,"abstract":"\u0000 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.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43616831","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 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.
{"title":"The Aftermath of Dutch International Crimes Cases","authors":"M. P. Bolhuis, Joris van Wijk","doi":"10.1093/jicj/mqad011","DOIUrl":"https://doi.org/10.1093/jicj/mqad011","url":null,"abstract":"\u0000 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.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41261681","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}
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.
{"title":"Life After Conviction at the International Criminal Tribunal for the former Yugoslavia","authors":"Lina Strupinskienė","doi":"10.1093/jicj/mqad010","DOIUrl":"https://doi.org/10.1093/jicj/mqad010","url":null,"abstract":"\u0000 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.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42185200","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 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.
{"title":"There is Something Special about War Criminals … ","authors":"Barbora Holá, Maja Munivrana","doi":"10.1093/jicj/mqad006","DOIUrl":"https://doi.org/10.1093/jicj/mqad006","url":null,"abstract":"\u0000 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.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47642587","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}
What happens to people who are accused of atrocity crimes at the bar of public opinion, are publicly indicted, prosecuted, tried, acquitted of criminal charges and then released? Does the mud stick? Or can the dirt also turn into gold, after legal exoneration and possible compensation? This article seeks to trigger a conversation on the international justice community’s stance on condemnation, compensation and convalescence. Through several versatile histories and stories, it gauges how exonerated persons have been navigating life after acquittal. To what extent have they managed to reverse, or recover from, their previous scandalizations, and if so: how? In thinking about this question, we problematize international justice community protagonists and prosecution services’ modus operandi (and effects) of scandalizing first and prosecuting alleged atrocitaires later. We observe that under the International Criminal Court (ICC)’s current circumstances (operating like a cage in search of birds) more suspects have been scandalized than convicted, but that often the scandal lingers. We conclude that for most acquitted persons requesting post-trial compensation is a dead end, and that doing so for some might further increase reputational damage. While several acquitted people ultimately remained defamed, some exonerated persons fully recovered from the human rights scandal by redefining compensation, and by turning the table and scandalizing the ICC.
{"title":"A Cage Went in Search of a Bird","authors":"T. Bouwknegt, Bart Nauta","doi":"10.1093/jicj/mqad009","DOIUrl":"https://doi.org/10.1093/jicj/mqad009","url":null,"abstract":"\u0000 What happens to people who are accused of atrocity crimes at the bar of public opinion, are publicly indicted, prosecuted, tried, acquitted of criminal charges and then released? Does the mud stick? Or can the dirt also turn into gold, after legal exoneration and possible compensation? This article seeks to trigger a conversation on the international justice community’s stance on condemnation, compensation and convalescence. Through several versatile histories and stories, it gauges how exonerated persons have been navigating life after acquittal. To what extent have they managed to reverse, or recover from, their previous scandalizations, and if so: how? In thinking about this question, we problematize international justice community protagonists and prosecution services’ modus operandi (and effects) of scandalizing first and prosecuting alleged atrocitaires later. We observe that under the International Criminal Court (ICC)’s current circumstances (operating like a cage in search of birds) more suspects have been scandalized than convicted, but that often the scandal lingers. We conclude that for most acquitted persons requesting post-trial compensation is a dead end, and that doing so for some might further increase reputational damage. While several acquitted people ultimately remained defamed, some exonerated persons fully recovered from the human rights scandal by redefining compensation, and by turning the table and scandalizing the ICC.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42923748","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}
At the International Criminal Court (ICC), victims can participate in proceedings. However, in order to gain access to the Court, victims must first apply to be recognized. The scope of victims’ rights and who theoretically qualifies as a victim in international criminal law has been discussed extensively, but the procedure for applying the definitions in practice and granting access to these rights is under-researched. This article aims to address this knowledge gap by mapping the decisions on the procedure for victim application review throughout the history of the ICC. Through a context analysis of decisions on the procedure for reviewing victim applications, the article identifies the evolution of the victim application review procedure at the ICC and argues that the Court has deviated significantly from the legal framework. In recognition of the fact that the procedure stipulated in the legal framework has proven inoperable, this article argues that a workable approach to reviewing victim applications has emerged from the practice of the Chambers of the Court.
{"title":"The Evolution of the Procedure for Reviewing Victim Applications at the International Criminal Court","authors":"Karen Lønne Ring","doi":"10.1093/jicj/mqac059","DOIUrl":"https://doi.org/10.1093/jicj/mqac059","url":null,"abstract":"\u0000 At the International Criminal Court (ICC), victims can participate in proceedings. However, in order to gain access to the Court, victims must first apply to be recognized. The scope of victims’ rights and who theoretically qualifies as a victim in international criminal law has been discussed extensively, but the procedure for applying the definitions in practice and granting access to these rights is under-researched. This article aims to address this knowledge gap by mapping the decisions on the procedure for victim application review throughout the history of the ICC. Through a context analysis of decisions on the procedure for reviewing victim applications, the article identifies the evolution of the victim application review procedure at the ICC and argues that the Court has deviated significantly from the legal framework. In recognition of the fact that the procedure stipulated in the legal framework has proven inoperable, this article argues that a workable approach to reviewing victim applications has emerged from the practice of the Chambers of the Court.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48480140","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":"Foreword","authors":"Anan Alsheikh Haidar","doi":"10.1093/jicj/mqad008","DOIUrl":"https://doi.org/10.1093/jicj/mqad008","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41645446","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}
Proceeding from the assumption that international criminal justice is a cosmopolitan project, the article advances a reconceptualized understanding of cosmopolitanism as a theoretical basis for collective action in ensuring accountability for international crimes. The article examines the building blocks of cosmopolitanism, and how the concept’s emphasis on equality and unity of the human family can guarantee its fundamental values of human dignity and shared humanity. Based on the understanding that international crimes assault humanity’s fundamental and cosmopolitan value of human dignity, and that accountability for such crimes is a cosmopolitan objective, the article advances the argument that while accountability for international crimes is primarily the obligation of individual sovereign states, this responsibility is ultimately residually one of humanity as a whole, exercisable through humanity’s collective action such as through regional intergovernmental organizations where an individual state is unable or unwilling by itself to do so.
{"title":"Obligations to ‘Strangers’","authors":"Owiso Owiso","doi":"10.1093/jicj/mqad004","DOIUrl":"https://doi.org/10.1093/jicj/mqad004","url":null,"abstract":"\u0000 Proceeding from the assumption that international criminal justice is a cosmopolitan project, the article advances a reconceptualized understanding of cosmopolitanism as a theoretical basis for collective action in ensuring accountability for international crimes. The article examines the building blocks of cosmopolitanism, and how the concept’s emphasis on equality and unity of the human family can guarantee its fundamental values of human dignity and shared humanity. Based on the understanding that international crimes assault humanity’s fundamental and cosmopolitan value of human dignity, and that accountability for such crimes is a cosmopolitan objective, the article advances the argument that while accountability for international crimes is primarily the obligation of individual sovereign states, this responsibility is ultimately residually one of humanity as a whole, exercisable through humanity’s collective action such as through regional intergovernmental organizations where an individual state is unable or unwilling by itself to do so.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42596843","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":"Foreword","authors":"Barbora Holá, Róisín Mulgrew, Maja Munivrana","doi":"10.1093/jicj/mqad007","DOIUrl":"https://doi.org/10.1093/jicj/mqad007","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2023-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43668594","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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