Pub Date : 2022-05-09DOI: 10.1163/15718123-bja10130
K. Carlson
Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.
{"title":"Punishment, Legality, and Other Challenges of International Criminal Law","authors":"K. Carlson","doi":"10.1163/15718123-bja10130","DOIUrl":"https://doi.org/10.1163/15718123-bja10130","url":null,"abstract":"\u0000Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49405252","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 : 2022-04-26DOI: 10.1163/15718123-bja10134
J. Marshall
In this piece, I advocate using everyday spaces research methods, more common in anthropology and cultural studies than law, to ensure the participation and inclusion of the voices of survivors of conflict-related sexual violence (crsv). I argue these methods are in harmony with a feminist holistic interpretation of the International legal framework, including International Criminal Law, purporting to bring justice for survivors of crsv, and recent United Nations’ calls for survivor-centred approaches to crsv.
{"title":"International Criminal Law, Everyday Spaces and Feminist Legal Theory","authors":"J. Marshall","doi":"10.1163/15718123-bja10134","DOIUrl":"https://doi.org/10.1163/15718123-bja10134","url":null,"abstract":"\u0000In this piece, I advocate using everyday spaces research methods, more common in anthropology and cultural studies than law, to ensure the participation and inclusion of the voices of survivors of conflict-related sexual violence (crsv). I argue these methods are in harmony with a feminist holistic interpretation of the International legal framework, including International Criminal Law, purporting to bring justice for survivors of crsv, and recent United Nations’ calls for survivor-centred approaches to crsv.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42297707","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 : 2022-04-26DOI: 10.1163/15718123-bja10133
Philipp Kastner
International institutions, like the United Nations and the International Criminal Court (icc), promote peace, democracy and justice. However, these intergovernmental institutions are typically governed through vertical structures and strict hierarchies, with little to no room for popular control and democratic participation of the wider society. The internal structures of these institutions are also revealing: individual high officials, from Secretary-Generals to Chief Prosecutors, play a crucial role, and great importance is attached to their personality and individual leadership skills. This article takes the recent and highly contested election process of the third icc Prosecutor, Karim Khan, who was appointed for a period of nine years in 2021, as a case study to reconsider the well-known yet enduring problem of the democratic deficit of international institutions and their at times undemocratic, or even authoritarian-like, decision-making processes. It starts by demonstrating the great attention given to the Prosecutor as an individual, both in the statute of the icc and in legal-political discourses more generally. This will lay the groundwork to develop the argument that this strong focus on certain individuals is highly problematic and does not contribute to increasing the legitimacy of the Court, whatever the reputation, skills and actual conduct of the official in question. As it will be argued, this disconnect can explain some of the deep-seated challenges and criticisms that the icc, and in particular its Prosecutors, have encountered since its establishment in 2002. Finally, the article seeks inspiration from democracy theory, in particular relevant research that has engaged with international institutions, to suggest that the Office of the Prosecutor could be directed not by an almighty chief, but rather by a panel of prosecutors.
{"title":"The International Prosecutor: Reconsidering an Almighty Saviour? On International Criminal Law’s Obsession with Individuals","authors":"Philipp Kastner","doi":"10.1163/15718123-bja10133","DOIUrl":"https://doi.org/10.1163/15718123-bja10133","url":null,"abstract":"\u0000International institutions, like the United Nations and the International Criminal Court (icc), promote peace, democracy and justice. However, these intergovernmental institutions are typically governed through vertical structures and strict hierarchies, with little to no room for popular control and democratic participation of the wider society. The internal structures of these institutions are also revealing: individual high officials, from Secretary-Generals to Chief Prosecutors, play a crucial role, and great importance is attached to their personality and individual leadership skills. This article takes the recent and highly contested election process of the third icc Prosecutor, Karim Khan, who was appointed for a period of nine years in 2021, as a case study to reconsider the well-known yet enduring problem of the democratic deficit of international institutions and their at times undemocratic, or even authoritarian-like, decision-making processes. It starts by demonstrating the great attention given to the Prosecutor as an individual, both in the statute of the icc and in legal-political discourses more generally. This will lay the groundwork to develop the argument that this strong focus on certain individuals is highly problematic and does not contribute to increasing the legitimacy of the Court, whatever the reputation, skills and actual conduct of the official in question. As it will be argued, this disconnect can explain some of the deep-seated challenges and criticisms that the icc, and in particular its Prosecutors, have encountered since its establishment in 2002. Finally, the article seeks inspiration from democracy theory, in particular relevant research that has engaged with international institutions, to suggest that the Office of the Prosecutor could be directed not by an almighty chief, but rather by a panel of prosecutors.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":"1 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41797021","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 : 2022-04-21DOI: 10.1163/15718123-bja10135
M. Kersten
Scant attention has been paid to the relationship between the perpetration of transnational organized crimes (toc s) and international crimes. This paper endeavours to instigate increased scrutiny of how these two crime sets interact. Relying on contributions from conflict and peace studies, I argue that it is useful to study their interaction within an international-transnational crime complex. To elaborate, I explore four conflicts in which an international-transnational crime complex is evident: Kosovo, Sierra Leone, northern Uganda, and Syria. Taken together, these cases demonstrate that these crimes types are linked irrespective of geographic location or the type of actors involved. The paper subsequently explores legal responses available to actors, including the International Criminal Court and specialized domestic units, which could link the prosecution and prevention of toc s and international crimes. The paper concludes with some reflections on the need to further interrogate—in both legal practice and scholarly work—international-transnational crime complexes.
{"title":"This Mass Atrocity was Brought to You by the Ivory Trade: Linking Transnational Organized and International Crimes","authors":"M. Kersten","doi":"10.1163/15718123-bja10135","DOIUrl":"https://doi.org/10.1163/15718123-bja10135","url":null,"abstract":"\u0000Scant attention has been paid to the relationship between the perpetration of transnational organized crimes (toc s) and international crimes. This paper endeavours to instigate increased scrutiny of how these two crime sets interact. Relying on contributions from conflict and peace studies, I argue that it is useful to study their interaction within an international-transnational crime complex. To elaborate, I explore four conflicts in which an international-transnational crime complex is evident: Kosovo, Sierra Leone, northern Uganda, and Syria. Taken together, these cases demonstrate that these crimes types are linked irrespective of geographic location or the type of actors involved. The paper subsequently explores legal responses available to actors, including the International Criminal Court and specialized domestic units, which could link the prosecution and prevention of toc s and international crimes. The paper concludes with some reflections on the need to further interrogate—in both legal practice and scholarly work—international-transnational crime complexes.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44755147","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 : 2022-03-21DOI: 10.1163/15718123-bja10132
C. Bijleveld, Margareta Blažević, Diana Bociga Gelvez, Mirza Buljubašić
Limited research has been devoted to factors impacting the perceived justness of sentences for international crimes. We presented respondents with a vignette in which such a hypothetical crime was described, as well as some contextual information; in the vignette, the perpetrator received a sentence that was based on similar historical cases. In the study, the rank of the perpetrator, the apology by the perpetrator, and the location of the trial (in the country where the crime was committed or at the International Criminal Court) were manipulated. Respondents were asked whether they believed the sentence was just or whether they would hand down a different sentence. Qualitative questions were included to elucidate respondents’ choices. Our mixed methods analyses reveal how apology, over and above strong geographic differences, plays a significant and dominant role in perceived justness.
{"title":"Sanctioning Perpetrators of International Crimes: A Vignette Study","authors":"C. Bijleveld, Margareta Blažević, Diana Bociga Gelvez, Mirza Buljubašić","doi":"10.1163/15718123-bja10132","DOIUrl":"https://doi.org/10.1163/15718123-bja10132","url":null,"abstract":"\u0000Limited research has been devoted to factors impacting the perceived justness of sentences for international crimes. We presented respondents with a vignette in which such a hypothetical crime was described, as well as some contextual information; in the vignette, the perpetrator received a sentence that was based on similar historical cases. In the study, the rank of the perpetrator, the apology by the perpetrator, and the location of the trial (in the country where the crime was committed or at the International Criminal Court) were manipulated. Respondents were asked whether they believed the sentence was just or whether they would hand down a different sentence. Qualitative questions were included to elucidate respondents’ choices. Our mixed methods analyses reveal how apology, over and above strong geographic differences, plays a significant and dominant role in perceived justness.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42184678","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 : 2022-03-08DOI: 10.1163/15718123-bja10131
Juan-Pablo Perez-Leon-Acevedo
Although the UN-Security Council established the International Criminal Tribunals for the former Yugoslavia and Rwanda, UN-international criminal tribunals were not replicated. The UN instead directly participated in creating hcts such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. Thus, this article seeks to determine whether UN-backed hcts constitute viable options in international criminal justice. These tribunals may be viable options if they are adequately implemented. Particularly when compared to UN-international criminal tribunals, reasons for their viability include their closer proximity to or larger impact on national societies, less costly work, shorter proceedings, and flexible mandates adapted to each context. Nevertheless, their viability depends on whether they can handle challenges concerning coordination between their international and national components, funding limitations, security issues, relationship with international criminal tribunals (especially the International Criminal Court), and relationship with national institutions.
{"title":"UN-Backed Hybrid Criminal Tribunals (hcts): Viable Options in International Criminal Justice?","authors":"Juan-Pablo Perez-Leon-Acevedo","doi":"10.1163/15718123-bja10131","DOIUrl":"https://doi.org/10.1163/15718123-bja10131","url":null,"abstract":"\u0000Although the UN-Security Council established the International Criminal Tribunals for the former Yugoslavia and Rwanda, UN-international criminal tribunals were not replicated. The UN instead directly participated in creating hcts such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon. Thus, this article seeks to determine whether UN-backed hcts constitute viable options in international criminal justice. These tribunals may be viable options if they are adequately implemented. Particularly when compared to UN-international criminal tribunals, reasons for their viability include their closer proximity to or larger impact on national societies, less costly work, shorter proceedings, and flexible mandates adapted to each context. Nevertheless, their viability depends on whether they can handle challenges concerning coordination between their international and national components, funding limitations, security issues, relationship with international criminal tribunals (especially the International Criminal Court), and relationship with national institutions.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45480471","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 : 2022-02-21DOI: 10.1163/15718123-bja10128
Christine van den Wyngaert
{"title":"Kai Ambos (ed.), Rome Statute of the International Criminal Court, Article-by-Article Commentary","authors":"Christine van den Wyngaert","doi":"10.1163/15718123-bja10128","DOIUrl":"https://doi.org/10.1163/15718123-bja10128","url":null,"abstract":"","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46057652","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 : 2022-02-15DOI: 10.1163/15718123-bja10129
L. Minkova
The icc has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and icc judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.
{"title":"Control over the Theory: Reforming the icc’s Approach to Establishing Commission Liability?","authors":"L. Minkova","doi":"10.1163/15718123-bja10129","DOIUrl":"https://doi.org/10.1163/15718123-bja10129","url":null,"abstract":"\u0000The icc has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and icc judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44719231","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 : 2022-02-04DOI: 10.1163/15718123-bja10127
Klea Ramaj
Before and during the Second World War, Japan established a legalised system of sexual slavery, in which approximately up to 200 000 women, euphemistically known as ‘comfort women’, were exploited. Although the victims came from all the regions of the Japanese Empire, the majority of them were Korean. While initial reconciliation attempts were met with refusal, a seemingly positive step was taken in December 2015, when South Korea and Japan announced that they had reached an agreement which would ‘finally and irreversibly’ resolve this issue. The main argument developed throughout the present article is that the agreement does not do justice in addressing the victims’ needs and rights in many ways, with the need for acknowledgement and memorialisation being primarily neglected. A critical evaluation of the 2015 agreement is particularly important in light of its suspension due to the dissolution of the Reconciliation and Healing Foundation.
{"title":"The 2015 South Korean–Japanese Agreement on ‘Comfort Women’: A Critical Analysis","authors":"Klea Ramaj","doi":"10.1163/15718123-bja10127","DOIUrl":"https://doi.org/10.1163/15718123-bja10127","url":null,"abstract":"\u0000 Before and during the Second World War, Japan established a legalised system of sexual slavery, in which approximately up to 200 000 women, euphemistically known as ‘comfort women’, were exploited. Although the victims came from all the regions of the Japanese Empire, the majority of them were Korean. While initial reconciliation attempts were met with refusal, a seemingly positive step was taken in December 2015, when South Korea and Japan announced that they had reached an agreement which would ‘finally and irreversibly’ resolve this issue. The main argument developed throughout the present article is that the agreement does not do justice in addressing the victims’ needs and rights in many ways, with the need for acknowledgement and memorialisation being primarily neglected. A critical evaluation of the 2015 agreement is particularly important in light of its suspension due to the dissolution of the Reconciliation and Healing Foundation.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45979488","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 : 2022-02-01DOI: 10.1163/15718123-bja10125
Emiliano J. Buis
In this paper, the author gives an account of the final trial scene in Aeschylus’ Eumenides, which in his opinion could be described as a subtle literary representation of the imperial justification of the exercise of criminal legal power over foreigners in classical Athens. Based on a philosophical exploration of the importance of criminal pollution and the need to create a new tribunal—the Areopagus—to institutionally overcome its dreadful consequences, it is contended that Aeschylean drama provides us with an aesthetic justification in antiquity for the creation (and imposition) of courts concerned with international offences which were considered to be extremely serious and dangerous for Athenian interests.
{"title":"Athena’s Vote: Imperial Proceedings and the Hegemonic Origins of International Criminal Law in Aeschylus’ Eumenides","authors":"Emiliano J. Buis","doi":"10.1163/15718123-bja10125","DOIUrl":"https://doi.org/10.1163/15718123-bja10125","url":null,"abstract":"\u0000In this paper, the author gives an account of the final trial scene in Aeschylus’ Eumenides, which in his opinion could be described as a subtle literary representation of the imperial justification of the exercise of criminal legal power over foreigners in classical Athens. Based on a philosophical exploration of the importance of criminal pollution and the need to create a new tribunal—the Areopagus—to institutionally overcome its dreadful consequences, it is contended that Aeschylean drama provides us with an aesthetic justification in antiquity for the creation (and imposition) of courts concerned with international offences which were considered to be extremely serious and dangerous for Athenian interests.","PeriodicalId":55966,"journal":{"name":"International Criminal Law Review","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45274194","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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