Pub Date : 2024-09-06DOI: 10.1017/s0922156524000165
Thomas Schultz
Usual accounts of international law-making and international legal change focus on formal secondary rules. Others include societal and institutional facts. But international law consists of ideas too. Arguably it exists only in minds. To be sure then, the conditions of ideational change codetermine when and how international law is made, unmade, and otherwise changes. This is what this article is after. It first draws a general sketch of international legal change (including its making and unmaking) to then zoom in on its ideational elements, with a narrower focus on market opportunities for ideas. These market opportunities, it is argued, are determined by: paradigm shifts, struggles between competing schools of thought, the formation of distinct epistemic subfields, the core individuals’ different capitals, and changes in beliefs.
{"title":"International law in the minds: On the ideational basis of the making, the changing, and the unmaking of international law","authors":"Thomas Schultz","doi":"10.1017/s0922156524000165","DOIUrl":"https://doi.org/10.1017/s0922156524000165","url":null,"abstract":"Usual accounts of international law-making and international legal change focus on formal secondary rules. Others include societal and institutional facts. But international law consists of ideas too. Arguably it exists only in minds. To be sure then, the conditions of ideational change codetermine when and how international law is made, unmade, and otherwise changes. This is what this article is after. It first draws a general sketch of international legal change (including its making and unmaking) to then zoom in on its ideational elements, with a narrower focus on market opportunities for ideas. These market opportunities, it is argued, are determined by: paradigm shifts, struggles between competing schools of thought, the formation of distinct epistemic subfields, the core individuals’ different capitals, and changes in beliefs.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142197339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-09DOI: 10.1017/s0922156524000141
Juho Aalto
Sexgender has become politicized by neo-conservative and populist movements in Europe and elsewhere. This article explores how the sexgender binary is foundational to the social and material construction of the non-heterosexual legal subject and unveils binary hierarchies embedded therein. Furthermore, it develops a new materialist methodology called BinaryTech, which exposes the binary formulas of inequality and difference in the Court’s jurisprudence. This new materialist approach, based on Karen Barad’s agential realism, is used to critically examine how differences are produced as stable features of subjects and objects. The human of the Convention being heterosexual is thereby the result, constructed on material-discursive differentiation of non-heterosexuals. The article concludes by describing how new materialist interventions and Nordic feminist perspectives on law can offer valuable insights within the emerging material turn.
{"title":"BinaryTech in motion: The sexgender in the European Court of Human Rights jurisprudence","authors":"Juho Aalto","doi":"10.1017/s0922156524000141","DOIUrl":"https://doi.org/10.1017/s0922156524000141","url":null,"abstract":"Sexgender has become politicized by neo-conservative and populist movements in Europe and elsewhere. This article explores how the sexgender binary is foundational to the social and material construction of the non-heterosexual legal subject and unveils binary hierarchies embedded therein. Furthermore, it develops a new materialist methodology called BinaryTech, which exposes the binary formulas of inequality and difference in the Court’s jurisprudence. This new materialist approach, based on Karen Barad’s agential realism, is used to critically examine how differences are produced as stable features of subjects and objects. The human of the Convention being heterosexual is thereby the result, constructed on material-discursive differentiation of non-heterosexuals. The article concludes by describing how new materialist interventions and Nordic feminist perspectives on law can offer valuable insights within the emerging material turn.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140932759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-09DOI: 10.1017/s092215652400013x
Alison Duxbury
The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.
{"title":"Rewriting the law of international organizations: Whither the Asia Pacific?","authors":"Alison Duxbury","doi":"10.1017/s092215652400013x","DOIUrl":"https://doi.org/10.1017/s092215652400013x","url":null,"abstract":"The law of international organizations is often described in terms of both its universality and its unity. Writers in this field begin their texts with an acknowledgement that there are common legal principles that have been developed by, and can be applied to, a variety of international organizations. The idea that there are legal principles applicable to multiple organizations – whatever their membership, location, powers, technical functions, or financial resources – is also implicit in the reports of the International Law Commission discussing the immunities, responsibilities, and law-making capacity of international organizations. But despite this search for common principles, a question remains whether international institutional law is based on the practice of all, or at the very least, a range, of organizations. Writers in this field have tended to focus on the activities of organizations based in either Europe or North America, including the United Nations and its specialized agencies, the European Union, and Council of Europe. This article argues that the omission of the principles and practices of organizations outside Europe and the United Nations’ system, specifically Asia Pacific organizations, undermines the claim of international institutional law to be universal. It explores the way in which a more inclusive approach – one that pays attention to the perspectives of Asia Pacific organizations – could illuminate certain features of the law and lead international lawyers to reconceive some of its central principles.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140932761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-05-03DOI: 10.1017/s0922156524000153
Andreas Kotsakis
This article builds upon the common metaphor of international organizations as the ‘machinery’ of international law to present a theoretical exploration of these institutions. This metaphor has remained unexamined, a reflection of the paradoxical status of international organizations as objects lacking theoretical attention. By tapping into the metaphor’s full theoretical potential and expanding it into a theory of international organizations as machines, this article introduces a new conceptualization of their role and operation. This is accomplished by applying a particular machine concept from social theory, as developed in the work of Felix Guattari and his collaboration with Gilles Deleuze. The proposed machinic perspective enables the casting of the relation between international organizations and states in a new light, building on the classical concerns with these entities’ attributed powers and granted international legal personality. It presents an image of these institutions as agents focused on the production of connections and links with external ideas and forces, in order to produce unforeseen powers and capacities.
{"title":"Beyond the machinery metaphors: Towards a theory of international organizations as machines","authors":"Andreas Kotsakis","doi":"10.1017/s0922156524000153","DOIUrl":"https://doi.org/10.1017/s0922156524000153","url":null,"abstract":"This article builds upon the common metaphor of international organizations as the ‘machinery’ of international law to present a theoretical exploration of these institutions. This metaphor has remained unexamined, a reflection of the paradoxical status of international organizations as objects lacking theoretical attention. By tapping into the metaphor’s full theoretical potential and expanding it into a theory of international organizations as machines, this article introduces a new conceptualization of their role and operation. This is accomplished by applying a particular machine concept from social theory, as developed in the work of Felix Guattari and his collaboration with Gilles Deleuze. The proposed machinic perspective enables the casting of the relation between international organizations and states in a new light, building on the classical concerns with these entities’ attributed powers and granted international legal personality. It presents an image of these institutions as agents focused on the production of connections and links with external ideas and forces, in order to produce unforeseen powers and capacities.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140829204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-22DOI: 10.1017/s0922156524000098
Sean Molloy
Article 12 of the United Nations (UN) Convention on the Rights of the Child (CRC) requires that states afford children the opportunity, subject to certain qualifications, to express their views on all matters that affect them. Alongside the substantive, procedural and normative significance of this right, Article 12 both reflects and contributes to progressive understandings of childhood more generally; it recognizes children as agentic beings ‘with integrity and personality and the ability to participate freely in society and articulate a view’. Nevertheless, the fulfilment of this legal right is often not realized, requiring ongoing efforts to help translate it into practice. This article examines how the UN Committee on the Rights of the Child (CommCRC), through recommendations to state parties issued as part of its monitoring function, can assist, or hinder the realization of Article 12. The primary argument advanced is that when issuing recommendations, the CommCRC ought to draw on the Lundy Model of Child Participation as an organizing concept- one utilized to weave together the substance of their recommendations in ways more instructive, useful, and impactful than the current approach.
{"title":"The Committee on the Rights of the Child and Article 12: Applying the Lundy model to treaty body recommendations","authors":"Sean Molloy","doi":"10.1017/s0922156524000098","DOIUrl":"https://doi.org/10.1017/s0922156524000098","url":null,"abstract":"Article 12 of the United Nations (UN) Convention on the Rights of the Child (CRC) requires that states afford children the opportunity, subject to certain qualifications, to express their views on all matters that affect them. Alongside the substantive, procedural and normative significance of this right, Article 12 both reflects and contributes to progressive understandings of childhood more generally; it recognizes children as agentic beings ‘with integrity and personality and the ability to participate freely in society and articulate a view’. Nevertheless, the fulfilment of this legal right is often not realized, requiring ongoing efforts to help translate it into practice. This article examines how the UN Committee on the Rights of the Child (CommCRC), through recommendations to state parties issued as part of its monitoring function, can assist, or hinder the realization of Article 12. The primary argument advanced is that when issuing recommendations, the CommCRC ought to draw on the Lundy Model of Child Participation as an organizing concept- one utilized to weave together the substance of their recommendations in ways more instructive, useful, and impactful than the current approach.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140636255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-04-02DOI: 10.1017/s0922156523000742
Matthias Goldmann
A visible sign of changing relations between the Global South and Global North are reparation claims for colonial injustice. An interesting case is the 1904–1907 Namibian Genocide. Germany has recently concluded a draft agreement with Namibia on reconciliation and compensation. Nevertheless, Germany maintains that it is not under any legal obligation to pay reparations. This article challenges that position, arguing that colonial international law was far too ambiguous to support this conclusion. For this purpose, the article contrasts this ‘conventional view’ of colonial international law with post-colonial and pluralistic approaches. Post-colonial approaches reveal colonial-era law as a deeply ambiguous, contradictory practice that mirrors the identity crisis of the colonizers. Pluralistic approaches juxtapose colonial international law with autochtonous views of inter-polity law, i.e., the normative framework governing colonial encounters. To reconstruct autochtonous views, the article draws on letters by Hendrik Witbooi and Maharero, traditional leaders from Namibia, and examines the contours of their inter-polity law relating to territorial sovereignty and warfare. These contending perspectives undermine the cogency with which the conventional view rejects reparation claims. While ambiguity as such does not give rise to compensation claims, other options come to mind, such as a duty to negotiate, shifts in the burden of proof – or a profound recalibration of international law towards greater solidarity.
{"title":"The ambiguity of colonial international law: Three approaches to the Namibian Genocide","authors":"Matthias Goldmann","doi":"10.1017/s0922156523000742","DOIUrl":"https://doi.org/10.1017/s0922156523000742","url":null,"abstract":"<p>A visible sign of changing relations between the Global South and Global North are reparation claims for colonial injustice. An interesting case is the 1904–1907 Namibian Genocide. Germany has recently concluded a draft agreement with Namibia on reconciliation and compensation. Nevertheless, Germany maintains that it is not under any legal obligation to pay reparations. This article challenges that position, arguing that colonial international law was far too ambiguous to support this conclusion. For this purpose, the article contrasts this ‘conventional view’ of colonial international law with post-colonial and pluralistic approaches. Post-colonial approaches reveal colonial-era law as a deeply ambiguous, contradictory practice that mirrors the identity crisis of the colonizers. Pluralistic approaches juxtapose colonial international law with autochtonous views of inter-polity law, i.e., the normative framework governing colonial encounters. To reconstruct autochtonous views, the article draws on letters by Hendrik Witbooi and Maharero, traditional leaders from Namibia, and examines the contours of their inter-polity law relating to territorial sovereignty and warfare. These contending perspectives undermine the cogency with which the conventional view rejects reparation claims. While ambiguity as such does not give rise to compensation claims, other options come to mind, such as a duty to negotiate, shifts in the burden of proof – or a profound recalibration of international law towards greater solidarity.</p>","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-04-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140600181","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-03-27DOI: 10.1017/s0922156524000086
Kate McInnes
Persons with disabilities suffer disproportionately in every armed conflict, and Russia’s war in Ukraine is no exception. The atrocities committed against persons with disabilities in this conflict, however, are in part a consequence of the state’s longstanding policy of institutionalization, which heightens existing vulnerabilities and places persons with disabilities at an unacceptable risk of acute harm. The Independent International Commission of Inquiry for Ukraine must investigate the extensive and varied acts of violence that have been committed against persons with disabilities in Ukraine since the beginning of the Russian invasion, with a focus on persons with disabilities who are institutionalized. In recommending future action, the Commission must be driven by a victim-centred approach to accountability that contributes both to the criminal prosecutions of individual perpetrators, and to systemic reforms that contribute to the project of deinstitutionalization. This article can assist the Commission’s analysis by: (i) canvassing the reports of violence against persons with disabilities during the war in Ukraine, particularly those persons in institutions; (ii) reviewing the Commission for Ukraine’s mandate and explaining its primary purpose – that is, to ascertain the facts of the conflict, through an intersectional lens, with the aim of promoting accountability – with reference to the work done by United Nations commissions of inquiry in the past; and (iii) providing concrete examples on how the Commission’s investigations and report can further both legal accountability and systemic accountability for violence against persons with disabilities in Ukraine.
{"title":"Seeking victim-centred accountability for violence against persons with disabilities at the United Nations Independent International Commission of Inquiry for Ukraine","authors":"Kate McInnes","doi":"10.1017/s0922156524000086","DOIUrl":"https://doi.org/10.1017/s0922156524000086","url":null,"abstract":"\u0000 Persons with disabilities suffer disproportionately in every armed conflict, and Russia’s war in Ukraine is no exception. The atrocities committed against persons with disabilities in this conflict, however, are in part a consequence of the state’s longstanding policy of institutionalization, which heightens existing vulnerabilities and places persons with disabilities at an unacceptable risk of acute harm. The Independent International Commission of Inquiry for Ukraine must investigate the extensive and varied acts of violence that have been committed against persons with disabilities in Ukraine since the beginning of the Russian invasion, with a focus on persons with disabilities who are institutionalized. In recommending future action, the Commission must be driven by a victim-centred approach to accountability that contributes both to the criminal prosecutions of individual perpetrators, and to systemic reforms that contribute to the project of deinstitutionalization. This article can assist the Commission’s analysis by: (i) canvassing the reports of violence against persons with disabilities during the war in Ukraine, particularly those persons in institutions; (ii) reviewing the Commission for Ukraine’s mandate and explaining its primary purpose – that is, to ascertain the facts of the conflict, through an intersectional lens, with the aim of promoting accountability – with reference to the work done by United Nations commissions of inquiry in the past; and (iii) providing concrete examples on how the Commission’s investigations and report can further both legal accountability and systemic accountability for violence against persons with disabilities in Ukraine.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140377658","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-03-25DOI: 10.1017/s0922156524000062
Laura Mai
The global climate crisis response envisioned by the Paris Agreement is commonly understood as demanding transformative change. International law, however, lacks a holistic conceptual framing for making sense of what such change would entail, how it might unfold, and who and what it will involve. Moreover, there has been little critical engagement with the question of what is at stake when invoking the notion of transformation. Contributing to the broader debate about what the climate crisis demands of international law, this article offers a critical conceptual appraisal of the notion of ‘transformation’. Conceptually, it describes transformative dynamics as processes which work towards radically different states of affairs that seem practically impossible under the status quo, but which could arguably be realized if different conditions were in place. Developing an ontology of transformative change, the article identifies heterogenous temporality, the actualization of impossible possibilities, and distributed engagement as three central features of transformations in climate crisis. Having laid the conceptual groundwork, the article then takes a critical turn and foregrounds unresolved tensions that run through transformation thinking. The aim here is to connect to critical discourses and show how these tensions can serve as entry points for international law to meaningfully engage with the notion of transformation. The article closes by offering some reflections on what engagement with the notion of transformation might mean for international law’s disciplinary identity, rationale, and sense of purpose.
{"title":"Navigating transformations: Climate change and international law","authors":"Laura Mai","doi":"10.1017/s0922156524000062","DOIUrl":"https://doi.org/10.1017/s0922156524000062","url":null,"abstract":"The global climate crisis response envisioned by the Paris Agreement is commonly understood as demanding transformative change. International law, however, lacks a holistic conceptual framing for making sense of what such change would entail, how it might unfold, and who and what it will involve. Moreover, there has been little critical engagement with the question of what is at stake when invoking the notion of transformation. Contributing to the broader debate about what the climate crisis demands of international law, this article offers a critical conceptual appraisal of the notion of ‘transformation’. Conceptually, it describes transformative dynamics as processes which work towards radically different states of affairs that seem practically impossible under the status quo, but which could arguably be realized if different conditions were in place. Developing an ontology of transformative change, the article identifies heterogenous temporality, the actualization of impossible possibilities, and distributed engagement as three central features of transformations in climate crisis. Having laid the conceptual groundwork, the article then takes a critical turn and foregrounds unresolved tensions that run through transformation thinking. The aim here is to connect to critical discourses and show how these tensions can serve as entry points for international law to meaningfully engage with the notion of transformation. The article closes by offering some reflections on what engagement with the notion of transformation might mean for international law’s disciplinary identity, rationale, and sense of purpose.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140297995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-03-12DOI: 10.1017/s0922156524000037
Cristina Fernández-Pacheco Estrada
The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the ad hoc tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite per se or indirectly integrated into a wider prognosis of the risk of recidivism.
{"title":"Gravity of the crime and early release: A comparative study of early release practices in international tribunals","authors":"Cristina Fernández-Pacheco Estrada","doi":"10.1017/s0922156524000037","DOIUrl":"https://doi.org/10.1017/s0922156524000037","url":null,"abstract":"The gravity of the crime committed has been considered ‘a factor of fundamental importance’ when deciding the early release of a person convicted by the <jats:italic>ad hoc</jats:italic> tribunals. Hence, most of the decisions rendered by the International Criminal Tribunal for the former Yugoslavia, for Rwanda and the International Residual Mechanism for Criminal Tribunals include this factor and determine whether it weighs in favour of or against early release. Conversely, when deciding the reduction of the sentence in the case of Thomas Lubanga, the International Criminal Court Panel stated in 2015 that ‘unlike at other international criminal tribunals, the gravity of the crime committed is not a factor that in itself weighs for or against reduction of sentence’. In fact, none of the decisions delivered by the International Criminal Court to date mention gravity. This drastic change reflects the differences in the corresponding statutes and rules of procedure and evidence and ultimately seeks to avoid a double count since the gravity of the crime committed is arguably the most important factor in the determination of the sentence. This divergence is examined in greater detail in this article, drawing on comparative, empirical research to establish the role played by gravity in early release decisions. Ultimately, it is argued that although the explanatory power generally attributed to gravity is often overrated, it is essential to a thorough early release assessment, whether included as a prerequisite <jats:italic>per se</jats:italic> or indirectly integrated into a wider prognosis of the risk of recidivism.","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140115124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2024-03-05DOI: 10.1017/s0922156524000074
M. Klamberg
{"title":"Yuji Iwasawa, Domestic Application of International Law: Focusing on Direct Applicability, Brill | Nijhoff, 2022, 314 pp, ISBN 9789004509863 – CORRIGENDUM","authors":"M. Klamberg","doi":"10.1017/s0922156524000074","DOIUrl":"https://doi.org/10.1017/s0922156524000074","url":null,"abstract":"","PeriodicalId":46816,"journal":{"name":"Leiden Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2024-03-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140079829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"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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