Field Of International Criminal Justice Research Articles

Peculiarities of international criminal liability: legal realities and past experience

The relevance of the topic of international criminal responsibility in the modern context is emphasized not only by the need to improve the mechanisms of legal response to violations of the international legal order but also by the need to develop and apply effective strategies to combat the most important crimes. Crimes against humanity, war crimes, and genocide are catastrophic manifestations of violations of the basic principles of humanity and international law, which require immediate and decisive measures to ensure the accountability of those responsible for such acts.
 In the conditions of a constantly changing world order and new challenges facing the international community, the proper study and analysis of legal realities and experience in the field of international criminal justice acquires importance.
 In the context of the evolution of international criminal law and the deepening of international cooperation in the field of justice, this study sets itself the task of identifying and analyzing the trends in the development of international criminal responsibility, focusing on the need to improve existing tools and define new strategies for ensuring the effectiveness of justice in the context of changing challenges in the modern world.
 This research, aimed at promoting understanding and solving modern challenges in the field of international criminal responsibility, is of great practical importance for the development of effective measures to counter international crimes and to hold accountable those who commit such violations.
 The main importance of this study lies in the fact that it contributes not only to the scientific understanding of the theoretical aspects of international criminal responsibility but also to the formulation of practical recommendations for improving the existing mechanisms of countermeasures and bringing guilty persons to justice. The scientific contribution to this topic will allow us to develop and implement new strategies for ensuring justice, as well as to determine the ways of further development of this complex and important field of international law.

Capital and Brokerage in International Criminal Justice: Elite Power in and at the Border of the Field

Abstract This article analyses the sociological foundations of the elite power in the field of international criminal justice. Building on a multiple correspondence analysis of 365 elite agents, the article shows how different accumulations of cultural, economic and social capital structure relations between elite groups active in the fight against atrocity crimes. Building on its analysis of these forms of capital, the article investigates how different combinations of capital empower specific elites to broker connections between social groups in and at the border of the field of international criminal justice. Analysing such forms of intra- or inter-field brokerage, the article shows how they allow specific elites to access and exert institutional and networked power that can be used to affect existing and craft new international criminal justice initiatives.

State Nobility in the Field of International Criminal Justice: Divergent Elites and the Contest to Control Power over Capital

Abstract Criminal law was long considered as the sovereign domain of the state. However, after the end of the Cold War, states created new international criminal courts. These courts are part of a wider field of international criminal justice in which different elites work to develop, support, and critique legal ideas and practices that either complement or challenge the state. Inspired by Pierre Bourdieu’s sociology and based on a multiple correspondence analysis with sixty-four modalities, this article contributes a critical analysis of 365 elite agents active in this field. The analysis shows how different types and volumes of capital structure relations between these elites as well as between the field of international criminal justice and the state. Because these relations can turn state nobility against its national origins, international criminal justice poses a potential challenge to the state’s social fabric which goes beyond legal and political controversies: International criminal justice is emblematic of a competition over the value of and control over capital which plays out at the borders between the national and the international. This contest underlines that the state does necessarily control power over state capital and that, when its elites no longer reproduce its meta-capital, the state loses the semblance of being a unified actor on the world stage. Whereas the intensity of this contest over capital might be particular to the field of international criminal justice, similar battles of control are likely to affect the relations between the state and other globalized fields of law, justice, and politics.

Justice Sites and the Fight against Atrocity Crimes

This article develops a new conceptual framework designed to critically study how locality and transversal power relations structure activity and developments in the global field of international criminal justice. The framework is built around the concept of “justice sites,” defined as localities in which organized and social labor—in this case, working with international criminal justice—takes place. The potential effects of social labor performed in specific sites of justice are structured partly by their locality and the resources to which it gives access and partly by their structural position in wider transversal chains of cooperation and competition that cut across different globalized and national fields. In addition to structuring the connections between justice sites, transversal power relations link sites of justice to “practice sites” embedded in other fields in which localized, social labor is not routinely engaged with international criminal justice. Such linkages demonstrate how the framework, developed to study how locality and transversal relations shape the fight against atrocity crimes, can also be used to investigate sites engaged in and across other globalized and national fields of justice, law, governance, and security.

Are We a Bigger Problem Than We Realize?

Abstract The impact of social media — in particular Twitter — on the field of international criminal justice cannot be overstated. Thanks to an active community of online commentators made up primarily of academics, researchers, staff of non-governmental organizations and journalists, Twitter is a vibrant place to monitor the pulse of international criminal law generally and the International Criminal Court specifically. Twitter, thus, uniquely elevates a comparatively small commentator class and amplifies their narratives about the field of international criminal justice. Yet with an apparent lack of voices from across the diverse community of practitioners, or the input of diplomats and technocrats who make the field possible, commentators may exert a disproportionate influence over public perceptions of international criminal justice. Cognisant of the stark interplay between politics and law in international criminal justice — often including powerful forces with nefarious agendas — and an abundance of individuals motivated by a desire to be seen and heard, this community may at times exhibit problematic behaviours (unwittingly or otherwise). This article dissects these issues of online communication, and argues that greater care with commentary may be the best salve to these cultural flaws in the formation of public perception.

The International Criminal Justice Marketplace of Ideas

Abstract The field of international criminal justice is supported and legitimized by a distinct marketplace of norms and ideas. Within this marketplace, stakeholders compete to define dominant norms, conceptual frames and the practical direction of international criminal justice. Building on the relational sociology of Bourdieu, this article examines how this competition plays out by studying the relational agenda-setting practices of central stakeholders. To this end, the analysis draws on an original dataset of annual reports produced by international criminal tribunals, academic articles and non-governmental organization reports published between 1994 and 2018. Employing Structural Topic Modelling, the article contributes a data-driven and empirically informed analysis of core developments and agenda-setting in the marketplace of ideas in international criminal justice. Zooming in on the topic of sexual violence which was placed on the agenda by NGOs in the early 2000s before becoming prevalent in the outputs of academics and international criminal tribunals, the article illustrates how normative agendas spearheaded by specific stakeholders can have broader effects in the field.

Between Fact and Opinion: The Sui Generis Approach to Expert Witness Testimony in International Criminal Trials

Abstract It is a fundamental tenet of the law of evidence, spanning all jurisdictions, that witness testimony should ideally be delivered in open court by the individual who observed the event in question, or by the expert whose technical knowledge is relied upon. A notable exception to this principle has emerged in the field of international criminal justice, where courts and tribunals may allow ‘summarising witnesses’ to present a summation of witness testimony. In the case of Ayyash et al., the Special Tribunal for Lebanon extended the principle, allowing voluminous expert opinion evidence to be presented in factual summation. This article analyses such approaches, utilising doctrinal methods alongside empirical Wigmorean analysis, to assess the probity of these sui generis practices. The results are placed in legal and theoretical perspective, demonstrating that international courts and tribunals are departing from an overarching obligation to integrate international and domestic standards in respect of expert testimony.

Legal Mobilization and the Internationalization of Anticorruption Enforcement

This article contributes a critical study of efforts to internationalize the investigation and prosecution of corruption. The efforts to internationalize anticorruption enforcement are visible, for instance, in calls for an International Anticorruption Court (IACC) or an Anticorruption Protocol to the United Nations Convention against Corruption (APUNCAC). Inspired by a historical sociological perspective, this article investigates mobilizations around these initiatives, how mobilizers frame their engagement, and the ideological context in which they operate. In particular, the article zooms in on elites and how they push for states to internationalize the investigation and prosecution of corruption. This article situates the efforts of these elites in a larger historical context and compares the push to internationalize anticorruption enforcement to earlier legal mobilizations in the field of international criminal justice focused on atrocity crimes.

Why lawyers internationalize and police transnationalize: disjointed criminal justice at the border of the state

This article investigates the socio-genesis of two different types of criminal justice developed at the border of the state. At this border, the field of international criminal justice was differentiated from the field of transnational criminal justice. The article analyzes how elites of these two fields are characterized by distinct relations to the state that structure their ability to affect criminal justice outside of the national context. These professionals worked in parallel in national systems of justice where they accumulated distinct patterns of expertise and access to the state. On the basis of these socio-professional differences, law and police professionals helped define new criminal justice initiatives at the border of the state that deepened the division between them. The development of international criminal justice was dominated by professionals of law whereas transnational criminal justice was built primarily around police professionals. Societal responses to globalized crime are structured by this disjointed space of criminal justice in which legal and police professionals dominate distinct enforcement initiatives.

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

This article examines the relevant case law of the International Criminal Court (ICC or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the ICC Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the ICC Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents - both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the ICC Prosecutor - the Al Hassan confirmation decision, CARII decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the ICC case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in ICC case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the ICC should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier ICC case law, the article turns to consider the prospects and space for the ICC to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

Critical stasis and disruptive performances: ICJ and the Anwar R trial in Koblenz

This article explores the extraterritorial criminal court case against Anwar R, a high-ranking member of the Syrian regime on trial for crimes against humanity in Koblenz, Germany. Empirically anchored in ethnographic fieldwork conducted in Koblenz and with the Commission for International Justice and Accountability, the article illuminates the trial as a ‘disruptive performance’. The case against Anwar R punctuates two instances of negative stasis and unsettles two accounts of chronicity, namely, those of the Syrian conflict and of the field of international criminal justice. In order to illuminate the trial as a disruptive performance, the article empirically situates the Koblenz case both in relation to the Syrian war that it relates to, to the international criminal justice apparatus that it is a part of and to the underlying compilation of evidence that substantiates it. It thus clarifies both the symbolic potential and the constitutive process that has brought it into being.

On Implementation of Intersectionality in Prosecuting and Adjudicating Mass Atrocities by the International Criminal Court

Abstract This article examines the relevant case law of the International Criminal Court (hereafter icc or Court) in order to assess the actual scope, confines and prospects of taking ‘intersectionality’ perspective in the Court’s prosecution and adjudication of mass atrocities involving discriminatory targeting. While the icc Prosecutor and judges traditionally resorted to uni-sectional analysis in considering such atrocities, some of the Court’s more recent jurisprudence subsequent to the adoption of the icc Prosecutor’s Policy Papers on Sexual and Gender-Based Crimes (2014) and on Children (2016) seems to be indicative of a more intersectionality-friendly approach to prosecuting and adjudicating international crimes against different protected groups and their members. In addition to the two Prosecutor’s policy documents—both of which explicitly address the interplay between phenomena of interesectional discrimination and mass crimes in the work of the icc Prosecutor—the Al Hassan confirmation decision, carii decisions and Ntaganda reparations order appear to betoken similarly positive developments towards pursuing more intersectional approach in the icc case law. A critical and chronological assessment of the Court’s intersectionality jurisprudence, however, suggests that it may be too early to say that these recent developments in icc case law are to be seen as an indication of an emerging trend to give greater and more conscious consideration to the intersectionality phenomena in its rulings. They may just as well simply represent occasional lucid moments in the Court’s reasoning and pronouncement on this complex issue. It is accordingly proposed that the icc should take intersectionality more seriously in both prosecution and adjudication of international crimes that involve multiple and intersecting forms of discrimination. Having discussed what that might have looked like in some of the earlier icc case law, the article turns to consider the prospects and space for the icc to actually implement intersectionality in its future jurisprudence. It looks at potential practical implications of the proposed jurisprudential developments for the Court and for the field of international criminal justice more generally. Finally, the article also reflects on the eventual pitfalls and challenges that such a regular and consistent intersectionality-driven interpretation and application of international criminal law may present for the Court.

Why lawyers internationalize and police transnationalize: Disjointed criminal justice at the border of the state

This article investigates the socio-genesis written of two different types of criminal justice developed at the border of the state. At this border, the field of international criminal justice was differentiated from the field of transnational criminal justice. The article analyzes how elites of these two fields are characterized by distinct relations to the state that structure their ability to affect criminal justice outside of the national context. These professionals worked in parallel in national systems of justice where they accumulated distinct patterns of expertise and access to the state. On the basis of these socio-professional differences, law and police professionals helped define new criminal justice initiatives at the border of the state that deepened the division between them. The development of international criminal justice was dominated by professionals of law whereas transnational criminal justice was built primarily around police professionals. Societal responses to globalized crime are structured by this disjointed space of criminal justice in which legal and police professionals dominate distinct enforcement initiatives.

El camino hacia el reconocimiento legal de la violencia sexual contra la mujer en tiempos de guerra

El objetivo de este trabajo es explorar el proceso de configuración de un Derecho Internacional que atienda al fenómeno de la violencia sexual contra las mujeres en contextos de conflictos armados, analizando el alcance del cambio de paradigma logrado en los años noventa con la tipificación y enjuiciamiento de la violencia sexual contra las mujeres en conflictos armados en el ámbito de la justicia penal internacional y, en última instancia, identificando posibles elementos sobre los que seguir avanzando hacia un Derecho Internacional que reconozca un estatus jurídico de las mujeres y huya de la imagen única de la mujer como víctima.

Power, Position and Professionals in International Criminal Justice

This paper will map and investigate the main forms of power that have been built in the field of international criminal justice. Inspired by the sociology of Pierre Bourdieu, and building on previous studies of the field of international criminal justice, the paper will contribute an original conceptual framework for studying the poles at which different forms of power is accumulated and exercised by agents in this field of law. Together these poles form a larger constellation that structures access to and deployment of power in the field of international criminal justice.

The doctrine of action popularis in international litigation: genesis and value dimension

The article is devoted to the analysis of the genesis and value dimension of the doctrine of action popularis and its application in the field of international criminal justice. The main ideas that formed the basis of the doctrine of action popularis are studied. The judicial practice of application of the modern doctrine of action popularis is analyzed. In the process of constitutional and legal reform in the field of justice in 2016, the Basic Law of the state was supplemented with new provisions, in particular, that in order to protect the rights, freedoms and interests of individuals in public relations there are administrative courts (part five of Art. Article 125 of the Constitution of Ukraine), and on the introduction of the legal institution of a constitutional complaint (part four of Article 55, Article 151-1 of the Constitution of Ukraine). Therefore, the issues of research of the judicial doctrine of action popularis, which determines the judicial protection of the rights and interests of an indefinite number of persons, acquire special importance. On the basis of which the principles of this doctrine since the days of Ancient Rome, the protection of the rights and interests of a particular person was carried out, in particular, taking into account national, national interests, and according to which doctrine every member of society had the legal right to protect public interests. , which are of paramount importance for society, the people, the state as a whole (translated from the Latin publicum - society, people, state), the right to combat crime. One of the trends in the development of modern international law is the formation of legal and institutional foundations for the protection of values, which are most important for the entire international community, and which form the basis of the modern international legal order. The need to ensure a fair balance, which must be established between the general interests of society as a whole and the requirements for the protection of individual fundamental rights, is reflected in the practice of international courts. Key words: Doctrine of action popularis, international court, international crimes, international judicial process.

Penal welfarism ‘gone global’? Comparing international criminal justice to The Culture of Control

With the consolidation of a cosmopolitan field of international criminal justice, penality has ‘gone global’. In spite of the abundance of doctrinal legal analysis, human rights studies, and transitional justice studies, there are few analytic attempts to engage with the working assumptions, cultural commitments, and dominant mentalities that give shape to international criminal justice as a penal field. Based on ethnographic observations, interviews with key actors, and critical reading of international criminal justice scholarship, this article compares the cosmopolitan penality of international criminal justice to that of late modern, domestic, penality. Using David Garland’s The Culture of Control as an analytic yardstick, it argues that international criminal justice both resembles and departs from ‘the national’. For example, whilst the cosmopolitan penality relies upon retributive justifications, it makes no appeal to harsh penal sanctions; nor is it concerned with the rehabilitation of prisoners. Rather, it is an expressive and humanitarian form of justice where the victim takes central stage – as the embodiment of a suffering humanity. Moreover, there is a remarkable faith in the transformative effects of international criminal justice, resembling a form of penal welfarism ‘gone global’. As national capacity building and penal development has become intrinsic to the project of international criminal justice, the article shows how the global dimension of the power to punish is based on a moralization of politics.

The Perestroika of International Criminal Law: Soviet Reforms and The Promise of Legal Primacy in International Governance

This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.

AI, Machine Learning, and International Criminal Investigations: The Lessons From Forensic Science

The evolving field of machine learning and artificial intelligence is frequently presented as a positively disruptive branch of data science whose expansion allows for improvements in the speed, efficiency, and reliability of decision-making, and whose potential is impacting across diverse zones of human activity. A particular focus for development is within the criminal justice sector, and more particularly the field of international criminal justice, where AI is presented as a means to filter evidence from digital media, to perform visual analyses of satellite data, or to conduct textual analyses of judicial reporting datasets. Nonetheless, for all of its myriad potentials, the deployment of forensic machine learning and AI may also generate seemingly insoluble challenges. The critical discourse attendant upon the expansion of automated decision-making, and its social and legal consequences, resolves around two interpenetrating issues; specifically, algorithmic bias, and algorithmic opacity, the latter phenomena being the focus of this study. It is posited that the seemingly intractable evidential challenges associated with the introduction of opaque computational machine learning algorithms, though global in nature, are neither novel nor unfamiliar. Indeed, throughout the past decade and across a multitude of jurisdictions, criminal justice systems have been required to respond to the implementation of opaque forensic algorithms, particularly in relation to complex DNA mixture analysis. Therefore, with the objective of highlighting the potential avenues of challenge which may follow from the introduction of forensic AI, this study focusses on the prior experience of litigating, and regulating, probabilistic genotyping algorithms within the forensic science and criminal justice fields. Crucially, the study proposes that machine learning opacity constitutes an enhanced form of algorithmic opacity. Therefore, the challenges to rational fact-finding generated through the use of probabilistic genotyping software may be encountered anew, and exacerbated, through the introduction of forensic AI. In anticipating these challenges, the paper explores the distinct categories of opacity, and suggests collaborative solutions which may empower contemporary legal academics – and both legal and forensic practitioners - to set more rigorous and usable standards. The paper concludes by considering the ways in which academics, forensic scientists, and legal practitioners, particularly those working in the field of international criminal justice, might re-conceptualize these opaque technologies, opening a new field of critique and analysis. Using findings from case analyses, overarching regulatory guidance, and data drawn from empirical research interviews, this article addresses the validity, transparency, and interpretability problems, leading to a comprehensive assessment of the current challenges facing the introduction of forensic AI. It builds upon work undertaken at the Nuffield Council on Bioethics Horizon Scanning Workshop: The future of science in crime and security (5th July 2019, London).

The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law

Scholarship within the field of international criminal justice has increasingly turned towards expressivist strands of thought, characterised by a concern for the didactic qualities of international criminal courts. Taking expressivism as its point of departure, this paper critically examines the expressive limits of international criminal justice. Specifically, the paper examines the extent to which international criminal courts have been expressively constrained both in their ability to alleviate the traumas of victims and in their receptivity to the local cultural values of conflict-affected communities. The paper argues that a critical reflection on the expressive limits of international criminal courts, paying particular attention to their retributive core and cultural assumptions, can help such institutions better navigate the complex terrain in which they operate, reducing aspirations concerning what they should be expected to achieve in practice and improving their legitimacy amongst local communities.