Project Of International Criminal Justice Research Articles

Margaret deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law

Drawing on an impressive collection of previous shorter pieces, Professor Margaret DeGuzman’s new book, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law,1 offers a new perspective on the entire international criminal justice project. In the author’s opinion, the concept of gravity of international crimes should be linked to the ‘values of the international community’ and, in particular, to the goal of preventing and punishing violations of human dignity. By linking the concept of gravity of international crimes to such values, deGuzman’s book develops a thought-provoking critique of international criminal justice as a whole, one that has the potential of challenging how scholars evaluate the theoretical foundations of international criminal law itself. The book under review comprises an introduction, six substantive chapters, and a conclusion. In the introduction, the author sets out the goals of the book and describes the conceptual framework applied throughout....

Africa and the International Criminal Court: (Re)constructing the Narrative

Abstract African support for the International Criminal Court (icc) from its earliest stages of institutional development is often referenced in the international criminal justice literature with limited explanation. The aim of this article is to establish a holistic account of African support for an international criminal court in the pre-Rome period, during the Rome Diplomatic Conference, and after the establishment of the icc. This analysis uses rational choice and constructivist international relations (ir) theory to help explain levels of African commitment to the Rome Statute using Kenya and Ivory Coast as case studies. While the icc has been criticized on neocolonial bases, it is important to reconstruct the narrative to more accurately reflect African agency over the international criminal justice project, and the icc in particular. African resistance to the institutional behaviour of the icc is situated in its broader political context(s): domestically and internationally, using rational and normative factors to explain various levels of African commitment to the Rome Statute.

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 Crises and Critiques of International Criminal Justice

It is often heard that international criminal justice is in ‘crisis’. Although the language of ‘crisis’ suggests a temporary and exceptional moment, the project of international criminal justice has essentially been in a legitimacy crisis since its emergence. International criminal tribunals have never been able to cleanse their ‘original sin’: despite their aspiration to transcend state power, they remain not just heavily dependent on it but also constrained and directed by it in their pursuit of ‘justice’. The more finessed the doctrine becomes, the more professionalised the practice, and the more sophisticated the institutions, the more evident is the inability of international criminal law to challenge the persisting power inequalities and address structural injustices of the international order. Against this background, this chapter diagnoses the state of the field by appraising the dynamics and quality of communication between its ‘mainstream defenders’ and the ‘radical critics’. It outlines the critics’ objectives and modes of engagement with the project and shows why some of the defensive impulses of the ‘mainstream’ fall short of effective responses to the critiques. The opposing sides to the debate about the legitimacy of international criminal justice seem to seldom think together and converse in earnest, despite having overlapping normative expectations towards the project. The chapter expresses a hope for a genuine, constructive dialogue between them, free of counterproductive tropes and tactics. The critical sensibility trickling into the ‘mainstream’ could help transform the institutional politics of the International Criminal Court and enable the project to realise its emancipatory potential.

Book Review: Historical Origins of International Criminal Law: Volumes 115

This book review examines a five-volume set published by the Torkel Opsahl Academic EPublisher and edited by Morten Bergsmo, Cheah Wui Ling, Yi Ping, Song Tianying, and Klaus Rackwitz. The first three volumes retell the genesis story of international criminal law from stereoscopic perspectives. In addition to new research on Nuremberg and Tokyo, Volume 1 includes some of the less celebratory accounts from the post-WWII period and provides visibility into the hundreds of less salient trials that took place in the European and Pacific theaters before domestic authorities, military tribunals, and people’s courts. Volume 2 of the series presents rich accounts of national efforts at enforcing international criminal law around the world, including trials in China and the then-Soviet Union, where a prolific history of postwar prosecutions belies contemporary reticence about the project of international criminal justice. Contributions by national criminal law experts in Volume 3 reinforce the centrality of complementarity in the ICC system. Volume 4 takes up intersecting questions of criminal procedure and investigative methodologies, such as the use of demographic analysis to prove international crimes and the contributions of fact-finding commissions to accountability exercises. Volume 5 is devoted to the capstone event in the modern history of international criminal law: the establishment of the ICC. This volume contains copies of, or adaptations from, a series of memoranda solicited by the series main editor from a range of experts as the ICC was being created. These contributions track the myriad logistical, strategic, and legal decisions — from the sublime to the mundane — that must be resolved to build and operate an entirely new judicial system virtually from scratch. This final volume also features more praxis-oriented chapters, touching upon best-practice methodologies for war crimes investigations, including evidentiary analysis and forensics, by some of the world’s great international criminal law practitioners. The series will be an essential resource for both academics and practitioners interested in the history of international criminal law as a distinct field and also of the early days of the ICC, the world’s first permanent international criminal court.

Radical Dissents in International Criminal Trials

International criminal law, for much of its history, has been a law characterized by dissents. However, international law scholarship has largely ignored the role of the dissenting opinion in shaping the discourse of international criminal law. This Article critically examines the nature and function of dissents at international criminal tribunals at a particularly crucial moment in the life of these courts, when the project of establishing accountability of mass atrocity through criminal trials is increasingly under attack. The Article argues that the dissenting opinion is a crucial legal device that can have a transformative potential in international criminal adjudication through its creation of a civic space for contestation that paradoxically shores up the legitimacy of the international criminal trial. To this end, it constructs a discrete category of dissenting opinions at international criminal courts: “radical dissents”. The content and rhetorical style of a radical dissent enables actors invested in the project of international criminal justice to use it as a vital dissentient voice both within and outside the courtroom. Agents who operate within the confines of the legal trial, such as defendants, lawyers, appellate chambers, and future judges, may channel its authority to challenge the idiom in which the majority judgment speaks. Likewise, the radical dissent could provide a legal language through which academics, victims, civil society, and other affected communities continue to grapple with constructing and coming to terms with events that defy human understanding.

Corporations before International Criminal Courts: Implications for the International Criminal Justice Project

AbstractThe debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

Carsten Stahn (ed.),The Law and Practice of the International Criminal Court

The first decade of the International Criminal Court (ICC) has passed, and increasingly, there is the sense that ‘the time of experiments is over’. 1 Assessments of both the Court, and more broadly, the international criminal justice project, are achievable. More significantly, such assessments are now able to rest upon discernable facts regarding the work and operations of the Court — as well as invoking the ‘faith’ that has traditionally galvanized international criminal justice. 2 In The Law and Practice of the International Criminal Court , editor Carsten Stahn has compiled 50 substantive chapters. Each chapter in this volume is impressive. The book provides an important contribution to the discourse around how the ICC can be understood and assessed after its first decade. The book is structured into six parts. The first part examines the ‘Context, Challenges, and Constraints’ of the ICC. Here, authors conduct analysis on questions of finances and resources, relationships to other institutions and the particular challenges faced by the ICC when operating within a political world. Part Two, entitled ‘The Relationship to Domestic Jurisdictions’, focuses on admissibility challenges, immunities, the relationship of the Court to non-state parties, self-referrals and ad hoc declarations of acceptance of jurisdiction. This is a rich section of the book, with extensive material on various aspects of how the ICC exercises its jurisdiction.

Faut-il croire en le droit (international pénal) ?

From an analysis of the shortcomings of the material justifications to the project of international criminal justice, this essay addresses the strength of its symbolic functions and justifications and the issues of faith resonance in its practice and its founding texts. The secular and/or religious nature of international criminal law, and the ability of (criminal) law to assume a symbolic role are then interrogated.

Battle of ideas, delivery of justice: How Justice Rapid Response contributes to the “project of International Criminal Justice”

Justice Rapid Response (JRR) is an intergovernmental mechanism that is designed to support and complement the international community’s efforts to ensure accountability for the most serious international crimes. It has grown out of the recognition, some ten years ago, that for all the talk of ending impunity for mass atrocities, the tools to come anywhere near this worthy goal were largely insuffi cient, and this in spite of the many political successes of the “project of international criminal justice.”

Language Work at International Criminal Courts

This article seeks to bring the often-invisible labor of interpreters and language assistants at the International Criminal Court and the ad hoc International Criminal Tribunals for Rwanda and the former Yugoslavia into sharper focus. I highlight the far-reaching and extensive tasks of language workers, paying particular attention to their efforts to negotiate and mediate witnesses' accounts of atrocity, including sexualized violence, inside and outside international courtrooms. In doing so, I illustrate how language work is central to the life of an international court and the vision of international criminal accountability. I argue that attention to the dynamics of language work provides opportunities to consider the project of international criminal justice in new and important ways, focusing on its practical work, its social encounters and its complex engagement with relations of difference.

Transitional Justice, States of Emergency and Business as Usual in Sierra Leone

ABSTRACTThis article situates the establishment of the Special Court for Sierra Leone in the wider context of the country's transitional period between 1999 and 2004. During this pivotal period, Sierra Leone experienced a massive state‐building intervention to establish the rule of law and introduce democracy. However, this new beginning was characterized by violent clashes between the leaders of the various warring factions who tried to secure political influence and security after the signing of the Lomé Peace Agreement in 1999. The article examines events that resulted in the unravelling of the peace agreement, the establishment of the Special Court and the arrests of hundreds of suspected rebels under a state of emergency, to show how they undermined the lofty promises of justice made by the representatives of the Special Court and the international community. It reveals the limited scope of the retributive project of international criminal justice at the intersections with the business‐as‐usual political manoeuvres that occurred after the end of the civil war.

‘When we Walk Out, What was it all About?’: Views on New Beginnings from within the International Criminal Tribunal for Rwanda

ABSTRACTThe 1994 United Nations Security Council resolution which created the International Criminal Tribunal for Rwanda (ICTR) foresaw it marking a ‘new beginning’, both locally (peace and reconciliation in Rwanda) and globally (strengthening the project of international criminal justice). Over time, those who spoke on behalf of the ICTR highlighted the strictly quantifiable (number of arrests, convictions) and the contributions to the global ‘new beginning’ for international criminal justice. Ethnographic fieldwork at the ICTR, however, revealed that lawyers and judges, enmeshed in the Tribunal's institutional order, held diverse views regarding local and global efficacy, refracted through the sense of power(lessness) that accompanied their respective institutional locations. Focusing on the attitude of judges and lawyers to the lack of indictments for members of the Rwandan Patriotic Army for alleged massacres in 1994 and accusations of ‘victor's justice’, this article distinguishes between the ICTR as a disembodied institution that did or did not mark local or global ‘new beginnings’, and the ICTR as a collection of situated persons negotiating their simultaneous empowerment and disempowerment.

Just a 'Bubble'?: Perspectives on the Enforcement of International Criminal Law by National Courts

The international criminal justice project is not in decline. Its focus, however, has shifted to where it, arguably, belongs: to national courts. National courts are integral to both the origins and the future of international criminal justice. The difficulties involved in national prosecutions led to the establishment of international courts and the rise of universal jurisdiction; the difficulties in using these latter forums, in turn, is leading back to national courts. This article examines the forward movement and the backlash of the enforcement of international criminal law by national courts, drawing in particular on the Latin American and the Spanish examples. It concludes by arguing that the hangover after the euphoria should be used to correct the sky-high expectations and to (re)determine the relationship between international and national and among different national jurisdictions.

Cave Principia Generalia! Two Problems with International Criminal Law's General Part

There is now a broad literature on how states have attempted to implement the Rome Statute of the International Criminal Court into their domestic legal orders, and the problems that they face translating international criminal law principles into domestic criminal regimes. However, this body of work tends to suffer from two limits. First, much of the academic focus on domestic implementation has been restricted to the special part of the criminal law, downplaying the importance of international criminal law's general part. Second, scholarly analysis tends to examine the issue of implementation from the perspective of states, loosing site of the impact of (non)implementation on the international system.This working paper seeks to remedy both of these shortfalls by examining the theoretical problems raised when the general principles of criminal law contained in the Rome Statute are with the general principles of individual states. These difficulties are examined both from the perspective of states - where misalignment raises questions about complementarity and the duty to prosecute - and the international system as a whole. In the latter case, misaligned general parts raise serious questions about both the distribution of responsibility for prosecuting core crimes, and the ability for international criminal tribunals to fulfill many of their purported goals.As compared to misalignment in the special part of international criminal law, general part differences present particularly intractable problems for both states and international institutions. Absent any easy solution to problems of misalignment, actors in the field of international criminal law ought to recognize the limits to the project of international criminal justice that general part misalignment represents.

THE DUTCH ENGAGEMENT WITH THE PROJECT OF INTERNATIONAL CRIMINAL JUSTICE

This article analyses the Dutch practice on the prosecution of international crimes with a view to determining whether this practice has been inspired by or has informed developments at the international level and more generally to analyzing how Dutch practice interrelates with international developments. The article singles out three episodes. First, a prelude of frustration in which the extradition of the German Emperor was refused (1918-1920). Subsequently, two periods of engagement, which were to some extent inspired by international proceedings (1946-1951 and 1994-today). In these periods, Dutch courts demonstrated commitment to the project of international criminal justice and they have produced insightful judgments which have even served as a source of law and a source of inspiration to contemporary international criminal law adjudication. The article has been written on the occasion of the 100th anniversary of the Netherlands Society of International Law.

Impartiality Deficit and International Criminal Judging

Revival in the 1990s of the international criminal justice project that had been launched decades earlier at Nuremberg and Tokyo has had consequences. As is often noted, many results have been salutary; among them, increased accountability for wrongdoing and a modicum of redress for victims. There has been, however, another, less salutary effect: tribunals' construction and operation sometimes bore the marks of compulsion to convict and inattention to the rights of the accused. This article focuses on how that tendency - called here impartiality - has affected international judging. After addressing the phenomenon at the global level, it looks more specifically at evidence of such a deficit in the operations of one hybrid tribunal, the Special Court for Sierra Leone.

Saddam Hussein and the Impartiality Deficit in International Criminal Justice

This article examines - in light of what here is called an impartiality deficit critique - the tribunal that is now scheduled to begin trial of deposed Iraqi President Saddam Hussein and his associates on October 19, 2005. The term is derived from democracy deficit, the label by which multilateral institutions are faulted for lack of accountability mechanisms common in modern constitutional states. Critics have extended that latter notion to a centerpiece of the international criminal justice project, the permanent International Criminal Court that began operations in 2002. In contrast, the impartiality deficit critique assumes the propriety of establishing international criminal justice mechanisms. In the hope of improving the quality of those mechanisms, it exposes instances in which defendants were denied any component of this injunction of the International Covenant on Civil and Political Rights: In the determination of any criminal charge against him, ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Within this analysis, one might examine several tribunals to see whether they meet a single fairness criterion, such as the duty of judges to act without bias; alternatively, one might assess a single tribunal in light of several criteria. This article opts for the latter course, applying the impartiality deficit critique to the Iraqi High Criminal Court, which stands poised to try persons charged with responsibility for torture, killings, and other crimes of repression over a thirty-five-year period. The article first lays out key concerns of the impartiality deficit critique and then evaluates the Court in light of them. It shows that initial implementation occurred in a manner so devoid of basic guarantees that there seemed little likelihood that the accused would receive either the appearance or reality of a fair trial.