International Penal Research Articles

Reflecting on the Genocide Convention in its Eighth Decade

Abstract 9 December 2018 marked the 70th anniversary of the adoption of the Genocide Convention by the United Nations General Assembly. Article 6 of the Convention explicitly grants adjudicatory jurisdiction to the territorial state and to an international penal tribunal. Yet, the textual content of the Article has not prevented other types of extraterritorial jurisdiction from applying to the crime, such as universal criminal jurisdiction. This article analyses the development of universal jurisdiction over the crime of genocide, and proposes that the main advancements occurred as a result of a number of key events in the 20th century. Providing a review of state practice and opinio juris, the article analyses how universal jurisdiction applies to genocide and outlines its scope.

The Philosophy of International Public Law and the Changes on the Reality of the International Society

The evolution of the concept of International society has considerably broadened throughout history along with the evolution of International rules. At first, it was defining the group of sovereign States existing at that time, while subsequently to the creation of the UN organization, International society would rather imply any individual designated by International legal corpus. At the end of the Cold War, the multiplication of nation-States, that would stay politically and economically fragile and unstable, compelled the UN to act over those States' sovereignty, though, to help them to outlive. Over the last decades, the phenomenon of globalization has contributed to support the idea of human rights and has considerably led to a global opinion that would be able to put pressure on States. Moreover, the UN would engage itself in emphasizing the concept of peace in all its decisions and actions. As such, International Penal institutions as the International Court of Justice had been established. But the fear of States for their sovereignty has still remained a problem in the equation.

Prawo spadkowe vs. sprawiedliwa sukcesja obiektów dziedzictwa kulturowego?

The law of inheritance vs. the just succession of the cultural property? Heirless property in European countries is typically inherited by the state. However, the routine application of this rule to assets belonging to victims of the German genocide during WWII continues to raise doubts. The recognition of a moral responsibility towards Holocaust victims in the Terezin Declaration legitimates the international debate on tensions between inheritance law and justice. The lack of a universal model for the succession of heirless Jewish cultural property acknowledged by this Declaration provokes different recommendations. One of the possibilities is the collective cultural restitution notion as a countermeasure to the crime of cultural genocide. This theory links the reinterpretation of the concept of genocide presented by Lemkin in 1944 with the restitution actions of Jewish succession organizations in 1940s and 50s. The theory mentioned is challenged in the article. The analysis is based on historical arguments, i.e. Lemkin’s focus on criminal liability and the specific nature of legal grounds for Jewish succession organizations after WWII. The history of inheritance law provides arguments to recommend another innovative way of dealing with the heirless property forming part of genocide victims’ inheritance. It is reasonable to distinguish between solutions pro futuro and those possible today. The paper concludes with a recommendation to supplement the Genocide Convention with specific rules about the heirless property of genocide victims. The state responsible for committing genocide should be eliminated from the inheritance of bona vacantia in favour of local successor organizations appointed by an international penal tribunal. Cultural property should be excluded from universal succession in the case of genocide and regarded as a legal person that continues victims’ remembrance. Currently, this model can inspire Polish policy regarding heirless Jewish cultural property. It should be focused on three goals: for objects to remain in Poland, the creation of a new complex database of objects accessible online and, if possible, the exhibition of objects alongside information about their last respective owners who died heirless.

Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Clarendon Studies in Criminology) M.Pifferi. Oxford: Oxford University Press (2016) 305pp. £70.00hb ISBN 978‐0‐19‐874321‐7

Reinventing Punishment: A Comparative History of Criminology and Penology in the Nineteenth and Twentieth Centuries (Clarendon Studies in Criminology) M.Pifferi. Oxford: Oxford University Press (2016) 305pp. £70.00hb ISBN 978‐0‐19‐874321‐7

Documents of Humanitarian Law and Support of Family in the Situation of Armed Conflicts

At current era, international humanitarian law has much importance and different dimensions while before the establishment of the United Nations Organization; merely bill conventions considered this issue. But after the formation of the United Nations Organization, Geneva rights were formed in 1949. Humanitarian law has different dimensions like family discussions that have been reflected in numerous documents of humanitarian law. For example, in quadruple Geneva conventions and two additional protocols, the cases from this view for exerting some humane supports of families can be considered. Even in some cases, according to the competence of the international penal court, some crimes against women and children have been criminalized, and massive criminal guarantees have been ordained for dealing with them. Therefore, in this article about the necessity and importance of the support of a family dynasty as the central core of human societies, numerous documents of humanitarian law have been studied and analyzed for supporting this important social element. Also, this result was obtained that in armed conflicts such as domestic or international, protection of a relation between the family members and special support of women, physically challenged persons and children in the first degree are considered as supportive priorities in Geneva conventions and supportive documents of humanitarian law.

A Giant without Limbs: The International Criminal Court's State-Centric Cooperation Regime

The International Criminal Court is one of the great international institutions in mankind's history with the potential to reconfigure significant aspects of the international system with regard to criminal jurisdiction. But like the international penal institutions before it, the success of the ICC revolves around international cooperation. An institutional check on the ICC's power is that it will have to work through States. States Parties will be asked to arrest and surrender suspects, investigate and collect evidence, extend privileges and immunities to ICC officials, protect witnesses, enforce ICC orders for fines and forfeiture and, at times, prosecute those who have committed offences against the administration of justice. The ICC will rely heavily on the cooperation of States Parties individually and collectively for its success. This article provides an analysis of the ICC's international cooperation and judicial assistance regime as well as an insight into the approaches that States Parties have adopted in seeking to give effect to the letter and spirit of their obligations domestically.

Foreign Prisoners in Europe: An Analysis of the 2012 Council of Europe Recommendation and Its Implications for International Penal Policy

The issue of migration is attracting significant media and political attention in Europe. Migration has been one of the causes of the rapid rise in the number and proportion of foreigners in national prisons. In response to this problem, the Council of Europe’s Committee of Ministers in 2012 adopted a recommendation concerning the treatment of foreign prisoners. This article analyses the penological and human rights implications of this recommendation in relation to its objectives to reduce the number of foreigners in custody, improve the regime experienced by foreign offenders and enhance the prospects for their successful reintegration. While the 2012 Recommendation makes important contributions to regional penal policy, it also contains notable gaps and limitations. The paper discusses the significance of omissions in relation to the (potential) role of consular representatives, dealing with nationals detained abroad and the use of inter-state transfers. Despite these criticisms and political resistance to some proposals in this field, there appears to be wide spread support for the Recommendation at a practitioner level. It may also have significance beyond domestic policy. There is a new and growing sub-category of foreign prisoner in Europe: the international prisoners convicted by international criminal courts that are serving their sentences in the prison systems of cooperating States. The paper concludes with a discussion of the potential influence regional penal policy can have on the implementation of international custodial sanctions.

US Foreign Policy and the International Penal Tribunal in the Genocide Convention: Article VI and Beyond

The United States has participated in most diplomatic discussions concerning the establishment of an international criminal court for the prosecution of mass atrocities, including the crime of genocide. US representatives supported the creation of an international penal tribunal during the drafting of the UN genocide convention. President Harry Truman signed the convention immediately following its adoption and, shortly thereafter, submitted it to the Senate for its advice and consent for ratification. The Senate failed to give its consent for 40 years. This paper analyzes (1) the foreign policy of the United States concerning the establishment of an international penal tribunal under article VI of the genocide convention and (2) how the Senate served as a roadblock to ratification for four decades.

Probation in Romania: Archaeology of a Partnership

The intention of this paper is to contribute to the international debate on penal policy transfer by describing the development of a probation service in Romania following the policy transfer schema developed by Dolowitz and Marsh (1996). Both authors of this article played a role in the establishment of probation in Romania and this article provides an ‘inside story’. Our conclusion is that both the debate and practices of policy transfer have been too simplistic to capture the dynamic and complex nature of international policy transfer and, indeed, that the notion of policy transfer itself is ill conceived. We demonstrate how partnership, when applied to international penal policy and practice developments, provides a potentially useful model.

On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone

With less than two years before the proposed closure of the Special Court for Sierra Leone (SCSL) and its Detention Facility, it is still unclear where individuals sentenced by the SCSL will serve their sentences. Drawing on qualitative empirical research, the author analyses the statutory options for the implementation of the sentences of imprisonment imposed by the SCSL. She also makes recommendations for the development of international penal policy and suggests structural reforms for international enforcement systems.

Limites do direito penal: princípios e desafios do novo programa de pesquisa em direito penal no Instituto Max-Planck de direito penal estrangeiro e internacional

Este texto contém o programa de pesquisa que irá orientar as atividades do instituto Max-Planck de direito penal estrangeiro e internacional de friburgo nos anos que seguem. O programa funda-se num diagnóstico abrangente dos principais problemas penais enfrentados pelo direito no mundo de hoje e, por esta razão, além de norte para um dos principais centros de pesquisa em direito penal no mundo, o texto é um mapa preciso das mais relevantes questões penais contemporâneas. Ele tem três objetivos principais: (a) analisar alterações nos riscos à segurança e as idéias sobre segurança numa sociedade marcada pela globalização e por mudanças técnicas e econômicas; (b) analisar a criticar as alterações legais que acompanham as mudanças mencionadas e suas causas, (iii) desenvolver novas respostas para os desafios postos pela necessidade de efetivar as leis. Três assuntos merecem maior destaque: o crime organizado internacional, o terrorismo e os crimes cometidos pela internet.

Tribunal Penal Internacional: de Direito de momento a momento do Direito

Este artigo tem por escopo a discussão da compatibilidade entre as disposições do Estatuto do Tribunal Penal Internacional e o direito penal e processual penal constitucionais brasileiros, bem como a análise da possibilidade de adequação dos dispositivos internacionais de proteção aos direitos humanos e as garantias individuais do cidadão.

Reflexões sobre terrorismo e direitos humanos: práticas e perspectivas

O terrorismo é concebido tendo em vista a relação entre Direito e Poder, sendo analisado à luz das resoluções da ONU, sob as perspectivas da União Européia e da legislação nacional, motivando novos questionamentos acerca dos direitos humanos e do Direito Penal Internacional.

Towards an Intercultural Legal Theory: The Dialogical Challenge

The aim of the article is to present to a predominantly Anglophone audience current work in French/Quebecois legal anthropology. This work attempts to build an epistemology for an intercultural legal theory and is opening up a dialogical approach to Law, which goes beyond the mere project of an intercultural legal theory. In order to do so, the article presents the LAJP's (Laboratory of Legal Anthropology of Paris) move towards a non-ethnocentric science of Law followed by a presentation of Panikkar's and Vachon's contributions on the 'dialogical method' which clarify the epistemological foundations of a pluralist approach to Law and lead to a presentation of Etienne Le Roy's theory of 'multilegalism' [multijuridisme]. The whole approach and its relevance are then illustrated through examples on the local, national and global planes in the fields of youth justice, French legal cooperation, land law and human rights and international penal law.

International Justice for Rwanda Missing the Point: Questioning the Relevance of Classical Criminal Law Theory

extract] To delve more deeply into the ICTR’s handicap in addressing the human rights situation in Rwanda through the international penal process, this Article makes use of a distinction of looking at human, social or for that matter world affairs: the actor-orientated and structure-orientated perspectives. They can be seen as two ways of reflecting, and reflecting on, social affairs and legal tradition, each of them focusing on different aspects. The legal paradigm (especially criminal law) is biased in favour of the actor-oriented perspective due to its simplistic concreteness, identification of the evil actor, apprehension and prosecution. This Article sets out to consider how far the ICTR has fulfilled its objectives, which transcend the prosecution and conviction of guilty persons. The contention is that the ICTR still has not made the most of its opportunity to facilitate change. The Article explains some of the reasons why the ICTR has not fulfilled this opportunity.

Continuity of Political Philosophy: War and Peace in Secularized Politics

I propose to examine here, at the outset, what I call the asymmetry in Thomas Hobbes's thought between his treatment of civil war and war between states, that is to say, between the departure from the state of nature - when that is a condition prevailing between individuals - and the permanency in the state of nature when it forms a condition existing between states. Secondly, I will address the Kantian progression beyond this asymmetry through the dual introduction of the idea of progress and of ‘cosmo-political’ peace. The attention given in recent years by Habermas to the Kantian idea of perpetual peace [Habermas, 1996], the recent events in Kosovo and Chechnya, and their implications for the shape of an international penal tribunal to judge crimes against humanity, invigorate the questions of civil peace and of rights which transcend state frontiers.

The International Penal Tribunal for Rwanda and National Reconciliation

The International Penal Tribunal for Rwanda and National Reconciliation

The Role of UNAFRI in the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders:An Overview

The Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (the Ninth Congress), was held in Cairo, Egypt from 29 April to 8 May, 1995. It followed the sequence of United Nations quinquennial congresses on the prevention of crime and die treatment of offenders which began in 1955 as a direct continuation of die international penitentiary congresses that had been organized by the International Penal and Penitentiary Commission (IPPC) since the 19tii century. The congresses are convened by the UN Economic and Social Council (ECOSOC) on die basis of General Assembly Resolution 415(V) of 1950. The Nindi Congress was attended by delegates from 138 states, several United Nations offices and organs, including specialized agencies, various inter-governmental and non-governmental organizations and over 190 individual experts. This was die first time the Congress was held on the African continent.

Penal Regressions

Baron Raffaele Garofalo's memorable treatise Criminology ends (almost as an afterthought) with an Appendix entitled “Outline of Principles Suggested as a Basis for an International Penal Code”. In barely twelve pages he formulates: principles of criminal liability; an enumeration of categories of offenders; a system of penalties to be adopted to combat crime; and some basic rules of procedure for bringing offenders to justice. Garofalo was not a cranky, lofty or flamboyant idealist. Together with Cesare Lombroso and Enrico Ferri he was the founder of the famous Positivist School of Criminology launched in Italy towards the end of the nineteenth century. He was a High Court Judge, a tough realist with a sharp and incisive mind. Staunch traditional conservative that he was, he might instead have been expected to advocate that each nation should be free to express its unique individuality through its own distinctive legal and penal edifice.

Montevideo Treaty on International Penal Law: 1889–1989 - 100 years of treaty making on asylum issues

Montevideo Treaty on International Penal Law: 1889–1989 - 100 years of treaty making on asylum issues