Pub Date : 2023-01-24DOI: 10.1163/15718123-bja10146
Anja Matwijkiw, Bronik Matwijkiw
This introduction is written by the two guest editors for a Special Issue of International Criminal Law Review entitled ‘Between Philosophy and International Criminal Law: Examples of Interdisciplinary Approaches.’ The text briefly explains the need for interdisciplinary research on law, meaning that the scholarly approaches are not limited to the theoretical foundations and methodologies of international criminal law (icl) and international Criminal Justice (icj). The introduction also provides an interdisciplinary snapshot of a selection of seven contributions, which represent a broad spectrum of examples.
{"title":"Between Philosophy and International Criminal Law: Examples of Interdisciplinary Approaches","authors":"Anja Matwijkiw, Bronik Matwijkiw","doi":"10.1163/15718123-bja10146","DOIUrl":"https://doi.org/10.1163/15718123-bja10146","url":null,"abstract":"\u0000This introduction is written by the two guest editors for a Special Issue of International Criminal Law Review entitled ‘Between Philosophy and International Criminal Law: Examples of Interdisciplinary Approaches.’ The text briefly explains the need for interdisciplinary research on law, meaning that the scholarly approaches are not limited to the theoretical foundations and methodologies of international criminal law (icl) and international Criminal Justice (icj). The introduction also provides an interdisciplinary snapshot of a selection of seven contributions, which represent a broad spectrum of examples.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45050437","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-03DOI: 10.1163/15718123-bja10144
Kyra Wigard
This article takes a closer look at the individual opinions of judges at the International Criminal Court (icc). The issuance of separate opinions is one of the most effective ways to investigate individual judicial behaviour, because a judge will only issue opinions if in her/his estimation the benefits outweigh the costs. The number of opinions a judge issues is an important measurement as is their timing. Building on an original dataset, the article identifies patterns by uncovering the predominant issuers, the cases and trial phases where individual opinions are most frequently issued, the dominant topics, and developments over time. Using a probabilistic topic modelling approach, this article suggests that opinions are a common way for several icc judges to engage in judicial politics about several topics with limited judicial restraint and finds that a small group of judges is most avid in using opinions as a judicial tool.
{"title":"Matter of Opinion: Assessing the Role of Individual Judicial Opinions at the International Criminal Court","authors":"Kyra Wigard","doi":"10.1163/15718123-bja10144","DOIUrl":"https://doi.org/10.1163/15718123-bja10144","url":null,"abstract":"\u0000This article takes a closer look at the individual opinions of judges at the International Criminal Court (icc). The issuance of separate opinions is one of the most effective ways to investigate individual judicial behaviour, because a judge will only issue opinions if in her/his estimation the benefits outweigh the costs. The number of opinions a judge issues is an important measurement as is their timing. Building on an original dataset, the article identifies patterns by uncovering the predominant issuers, the cases and trial phases where individual opinions are most frequently issued, the dominant topics, and developments over time. Using a probabilistic topic modelling approach, this article suggests that opinions are a common way for several icc judges to engage in judicial politics about several topics with limited judicial restraint and finds that a small group of judges is most avid in using opinions as a judicial tool.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45006958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-25DOI: 10.1163/15718123-bja10142
N. Palmer, Tomas Hamilton
This article examines how judges and lawyers working in international criminal courts see their authority in relation to power exerted by states, international organisations and private actors. We draw together ethnographic research inside the International Criminal Tribunal for Rwanda (ictr) and the International Criminal Court (icc) that examined perceptions of the interactions among local, national and international legal regimes and the potential for accomplice liability for arms traders under international criminal law. Overall, we show that the legal actors in these courts routinely understood their power as severely limited by concurrent sites of private and public authority. Building on ideas of legal humility, we argue that this should be understood as ‘selective humility’. This humility demonstrated a reticence among these legal actors about what internationalised courts can achieve while offering an argumentative defence against critiques of this legal practice.
{"title":"Legal Humility and Perceptions of Power in International Criminal Justice","authors":"N. Palmer, Tomas Hamilton","doi":"10.1163/15718123-bja10142","DOIUrl":"https://doi.org/10.1163/15718123-bja10142","url":null,"abstract":"\u0000This article examines how judges and lawyers working in international criminal courts see their authority in relation to power exerted by states, international organisations and private actors. We draw together ethnographic research inside the International Criminal Tribunal for Rwanda (ictr) and the International Criminal Court (icc) that examined perceptions of the interactions among local, national and international legal regimes and the potential for accomplice liability for arms traders under international criminal law. Overall, we show that the legal actors in these courts routinely understood their power as severely limited by concurrent sites of private and public authority. Building on ideas of legal humility, we argue that this should be understood as ‘selective humility’. This humility demonstrated a reticence among these legal actors about what internationalised courts can achieve while offering an argumentative defence against critiques of this legal practice.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45283080","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-26DOI: 10.1163/15718123-bja10143
D. Yigzaw
The Singapore compromise was the basis for the role of the United Nations Security Council (unsc) in the operations of the International Criminal Court (icc). The compromise was meant to enlist the support of superpowers. Yet, three of the five permanent members of the unsc; namely, China, Russia, and the United States have not only stayed out of the Rome Statute system but also have taken turns in undermining the icc. Thus, the political power they enjoy over the icc– an institution they refuse to recognize–defies elementary requirements of legitimacy. Crucially, the lack of consensus in the unsc due to growing big power confrontations means that it has been unable to make referrals for over a decade. The price the icc pays in terms of its independence and legitimacy due to its association with the unsc is thus for little gain.
{"title":"The Case for Removing the Security Council’s Powers from the International Criminal Court","authors":"D. Yigzaw","doi":"10.1163/15718123-bja10143","DOIUrl":"https://doi.org/10.1163/15718123-bja10143","url":null,"abstract":"\u0000 The Singapore compromise was the basis for the role of the United Nations Security Council (unsc) in the operations of the International Criminal Court (icc). The compromise was meant to enlist the support of superpowers. Yet, three of the five permanent members of the unsc; namely, China, Russia, and the United States have not only stayed out of the Rome Statute system but also have taken turns in undermining the icc. Thus, the political power they enjoy over the icc– an institution they refuse to recognize–defies elementary requirements of legitimacy. Crucially, the lack of consensus in the unsc due to growing big power confrontations means that it has been unable to make referrals for over a decade. The price the icc pays in terms of its independence and legitimacy due to its association with the unsc is thus for little gain.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45906887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-14DOI: 10.1163/15718123-bja10141
Sara L. Ochs
{"title":"Randle C. DeFalco, Invisible Atrocities: The Aesthetic Biases of International Criminal Justice","authors":"Sara L. Ochs","doi":"10.1163/15718123-bja10141","DOIUrl":"https://doi.org/10.1163/15718123-bja10141","url":null,"abstract":"","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42417769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-08-04DOI: 10.1163/15718123-bja10140
Eleni Micha
International criminal courts and tribunals have faced a number of challenges with respect to the assessment of evidence. For the International Criminal Court (icc) there are pressing questions regarding the best interpretation of the relevant provisions in the Rome Statute (rs). To this point, the assessment of documentary evidence conveyed by the UN Independent Investigative Mechanisms (iims) constitutes a rather unexplored area. Accordingly, the present study will reflect upon the challenges posed for the icc, in case the Court proceeds to evaluate the evidence collected by those mechanisms. Special focus will be upon the working methodology of the IIM on Syria and Myanmar. Based on the Court’s recent case-law and, in particular on the Ongwen judgment, the study will further analyze the applicability of the three-prong test of Article 69(4)rs with a view to clarifying the evidentiary standard-setting of the Court.
{"title":"Evaluating the Evidence by the UN International Investigative Mechanisms: a New Challenge for the International Criminal Court?","authors":"Eleni Micha","doi":"10.1163/15718123-bja10140","DOIUrl":"https://doi.org/10.1163/15718123-bja10140","url":null,"abstract":"International criminal courts and tribunals have faced a number of challenges with respect to the assessment of evidence. For the International Criminal Court (icc) there are pressing questions regarding the best interpretation of the relevant provisions in the Rome Statute (rs). To this point, the assessment of documentary evidence conveyed by the UN Independent Investigative Mechanisms (iims) constitutes a rather unexplored area. Accordingly, the present study will reflect upon the challenges posed for the icc, in case the Court proceeds to evaluate the evidence collected by those mechanisms. Special focus will be upon the working methodology of the IIM on Syria and Myanmar. Based on the Court’s recent case-law and, in particular on the Ongwen judgment, the study will further analyze the applicability of the three-prong test of Article 69(4)rs with a view to clarifying the evidentiary standard-setting of the Court.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45671631","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-08DOI: 10.1163/15718123-bja10139
Vessela Terzieva
Recently municipal courts have found that foreign states do not enjoy jurisdictional immunity with respect to civil claims involving serious violations of international law within the forum state’s territory during armed conflict. This article assesses the recent judgments’ potential impact, taking into account previous court practice and international human rights jurisprudence. It concludes that an exception to immunity in the above circumstances where no alternative judicial remedies exist for the victims has a basis in previous practice and may be required to give effect to international human rights obligations. A recognition by the foreign state of an individual victims’ right to bring a claim before that state’s courts could provide the victims with reparation in the form of satisfaction. Where no such possibility exists, a limited exception to the rule of state immunity would ensure the victims’ right to access to court and to the truth.
{"title":"State Immunity and Victims’ Rights to Access to Court, Reparation, and the Truth","authors":"Vessela Terzieva","doi":"10.1163/15718123-bja10139","DOIUrl":"https://doi.org/10.1163/15718123-bja10139","url":null,"abstract":"\u0000Recently municipal courts have found that foreign states do not enjoy jurisdictional immunity with respect to civil claims involving serious violations of international law within the forum state’s territory during armed conflict. This article assesses the recent judgments’ potential impact, taking into account previous court practice and international human rights jurisprudence. It concludes that an exception to immunity in the above circumstances where no alternative judicial remedies exist for the victims has a basis in previous practice and may be required to give effect to international human rights obligations. A recognition by the foreign state of an individual victims’ right to bring a claim before that state’s courts could provide the victims with reparation in the form of satisfaction. Where no such possibility exists, a limited exception to the rule of state immunity would ensure the victims’ right to access to court and to the truth.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-07-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46906098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-20DOI: 10.1163/15718123-bja10138
Pascale Chifflet, I. Freckelton
The defence of mental incapacity raises unique challenges in the particular context of mass atrocity and international criminal law. Yet, it has remained largely unexplored in the jurisprudence of international courts and tribunals. The Trial Chamber judgment issued by the International Criminal Court in the case of Dominic Ongwen offered a unique opportunity to remedy this and clarify the legal contours of the defence. Unfortunately, the court engaged minimally with these issues. This article examines the court’s reasoning in the Ongwen case and the lessons that may be learnt from it about the operation of the defence, particularly in relation to the treatment of expert evidence. It is contended that while there were significant shortcomings in the claim put forward by Ongwen in the aftermath of the judgment, the prospects of advancing a successful defence of mental incapacity based on control-related disorders in the future appear limited.
{"title":"The Mental Incapacity Defence in International Criminal Law: Ramifications from the Ongwen Trial Judgment","authors":"Pascale Chifflet, I. Freckelton","doi":"10.1163/15718123-bja10138","DOIUrl":"https://doi.org/10.1163/15718123-bja10138","url":null,"abstract":"\u0000The defence of mental incapacity raises unique challenges in the particular context of mass atrocity and international criminal law. Yet, it has remained largely unexplored in the jurisprudence of international courts and tribunals. The Trial Chamber judgment issued by the International Criminal Court in the case of Dominic Ongwen offered a unique opportunity to remedy this and clarify the legal contours of the defence. Unfortunately, the court engaged minimally with these issues. This article examines the court’s reasoning in the Ongwen case and the lessons that may be learnt from it about the operation of the defence, particularly in relation to the treatment of expert evidence. It is contended that while there were significant shortcomings in the claim put forward by Ongwen in the aftermath of the judgment, the prospects of advancing a successful defence of mental incapacity based on control-related disorders in the future appear limited.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44548557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-16DOI: 10.1163/15718123-bja10137
S. Negri
Crimes against the environment affect fundamental values and collective interests shared by the international community as a whole. The ‘global’ nature of the protected interests and the erga omnes character of many international environmental obligations are the main arguments in favour of the international criminalisation of certain environmental harms. This paper offers a survey of the development of international law with regard to the legal definition and consequences of environmental crimes from the perspective of both the law of state responsibility and international criminal law, up to the latest definition of ecocide and the proposal for its inclusion in the Rome Statute as formulated by the Panel of Independent Experts convened by the Stop Ecocide Foundation. In so doing, the legal regime related to environmental crimes is also considered through the environmental ethics lens, so as to evidence the progressive evolution from an anthropocentric approach to the ecocentric view which characterises the new legal definition of the crime of ecocide.
{"title":"On Meteors and Comets: Is the Crime of Ecocide Back to Stay?","authors":"S. Negri","doi":"10.1163/15718123-bja10137","DOIUrl":"https://doi.org/10.1163/15718123-bja10137","url":null,"abstract":"\u0000Crimes against the environment affect fundamental values and collective interests shared by the international community as a whole. The ‘global’ nature of the protected interests and the erga omnes character of many international environmental obligations are the main arguments in favour of the international criminalisation of certain environmental harms. This paper offers a survey of the development of international law with regard to the legal definition and consequences of environmental crimes from the perspective of both the law of state responsibility and international criminal law, up to the latest definition of ecocide and the proposal for its inclusion in the Rome Statute as formulated by the Panel of Independent Experts convened by the Stop Ecocide Foundation. In so doing, the legal regime related to environmental crimes is also considered through the environmental ethics lens, so as to evidence the progressive evolution from an anthropocentric approach to the ecocentric view which characterises the new legal definition of the crime of ecocide.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46645722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-09DOI: 10.1163/15718123-bja10136
S. Wallace
Perpetrators of war crimes and crimes against humanity, and senior officials in notorious government regimes, can be deported from Canada. This study reports on the first complete and systematic empirical analysis of all finalized international criminality deportation cases in Canada. The analysis, a review of deportation cases finalized between January 2018 and July 2020, shows that Canada is using deportation law in place of, and instead of, refugee exclusion law. This means that scholars interested in Canadian refugee exclusion should play close attention to deportation law. This study also found that international criminality allegations were usually made against people for their involvement in problematic police, prison, or military institutions. Most international criminality deportation investigations were minimal and revolved almost entirely around a person’s self-disclosures. This article concludes with a discussion about how deportation law and process makes international criminal law unique in the deportation context.
{"title":"The New Canadian Law of Refugee Exclusion: An Empirical Analysis of International Criminal Law Deportation Orders, January 2018 to July 2020","authors":"S. Wallace","doi":"10.1163/15718123-bja10136","DOIUrl":"https://doi.org/10.1163/15718123-bja10136","url":null,"abstract":"\u0000Perpetrators of war crimes and crimes against humanity, and senior officials in notorious government regimes, can be deported from Canada. This study reports on the first complete and systematic empirical analysis of all finalized international criminality deportation cases in Canada. The analysis, a review of deportation cases finalized between January 2018 and July 2020, shows that Canada is using deportation law in place of, and instead of, refugee exclusion law. This means that scholars interested in Canadian refugee exclusion should play close attention to deportation law. This study also found that international criminality allegations were usually made against people for their involvement in problematic police, prison, or military institutions. Most international criminality deportation investigations were minimal and revolved almost entirely around a person’s self-disclosures. This article concludes with a discussion about how deportation law and process makes international criminal law unique in the deportation context.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49055775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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