Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.001.0001
- Subject:
- Political Science, International Relations and Politics
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret ...
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This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.Less
This book is among the first to address the issues raised by the International Criminal Court from an International Relations perspective. By clearly outlining a theoretical framework to interpret these issues, it makes a significant contribution to the English School's study of international society. More specifically, it offers a concise definition of ‘world society’ and thus helps to resolve a longstanding problem in international theory. This groundbreaking conceptual work is supported by an indepth empirical analysis of American opposition to the ICC. The book goes beyond the familiar arguments related to national interests and argues that the Court has exposed the extent to which American notions of accountability are tied to the nation‐state. Where other democracies are willing to renegotiate their social contract because they see themselves as part of world society, the US protects its particular contract with ‘the American people’ because it offers a means of distinguishing that nation and its democracy from the rest of the world. In opposing the ICC, therefore, the US seeks to defend a society of states because this kind of society can accommodate American exceptionalism and advance particular US interests. This ‘sovereigntist’, or more accurately ‘Americanist’, influence is further illustrated in chapters on the customary international law, universal jurisdiction, transatlantic relations and US policy on international humanitarian law in the war on terror. The book concludes by evoking E.H. Carr's criticism of those great powers who claim that a harmony exists between their particular interests and those of wider society. It also recalls his argument that great powers sometimes need to compromise and in this context it argues that support for the ICC is a more effective means of fulfilling America's purpose and a less costly sacrifice for the US to make than that demanded by the ‘Americanist’ policy of nation‐building.
Andrew Kuper
- Published in print:
- 2004
- Published Online:
- November 2004
- ISBN:
- 9780199274901
- eISBN:
- 9780191601552
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274908.003.0005
- Subject:
- Political Science, International Relations and Politics
How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) ...
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How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) the jurisdiction of the International Court of Justice; (3) membership in, and decision procedures of, the UN General Assembly and Security Council; and (4) structures and methods of corruption control by Transparency International. Along the way, the chapter refutes those arguments about funding and sovereignty that hamper the establishment of stronger World Courts; it develops nine criteria for including non-state actors in institutions of global governance; it suggests new ideas for holding corporations and nongovernmental organizations accountable; and it explores how short-term and long-term obstacles to reform can be overcome.Less
How can the theory of Responsive Democracy guide and be implemented in political practice? This chapter proposes significant reforms to: (1) the jurisdiction of the International Criminal Court; (2) the jurisdiction of the International Court of Justice; (3) membership in, and decision procedures of, the UN General Assembly and Security Council; and (4) structures and methods of corruption control by Transparency International. Along the way, the chapter refutes those arguments about funding and sovereignty that hamper the establishment of stronger World Courts; it develops nine criteria for including non-state actors in institutions of global governance; it suggests new ideas for holding corporations and nongovernmental organizations accountable; and it explores how short-term and long-term obstacles to reform can be overcome.
Robert C. Johansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195395914
- eISBN:
- 9780199776801
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195395914.003.0008
- Subject:
- Political Science, International Relations and Politics
This chapter examines the complex interplay between international judicial processes and peace. Johansen engages the debate on international judicial activism, evaluating specific cases, especially ...
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This chapter examines the complex interplay between international judicial processes and peace. Johansen engages the debate on international judicial activism, evaluating specific cases, especially the International Criminal Court’s indictment of leaders of the Lord’s Resistance Army in Uganda. Judicial proceedings have complex consequences for a wide range of conflict issues, including negotiating ceasefires, deterring future crimes, and prospects for post-conflict reconciliation. The author proposes guidelines for employing judicial processes to promote an end to conflict, based on a utilitarian ethic that gives priority to saving as many lives as possible. The guidelines consider how to advance peace and justice not only through judicial proceedings, but also when judicial proceedings are suspended.Less
This chapter examines the complex interplay between international judicial processes and peace. Johansen engages the debate on international judicial activism, evaluating specific cases, especially the International Criminal Court’s indictment of leaders of the Lord’s Resistance Army in Uganda. Judicial proceedings have complex consequences for a wide range of conflict issues, including negotiating ceasefires, deterring future crimes, and prospects for post-conflict reconciliation. The author proposes guidelines for employing judicial processes to promote an end to conflict, based on a utilitarian ethic that gives priority to saving as many lives as possible. The guidelines consider how to advance peace and justice not only through judicial proceedings, but also when judicial proceedings are suspended.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0001
- Subject:
- Political Science, International Relations and Politics
This chapter examines how criminal justice helps to construct society by reaffirming common values at the moment they meet with opposition. It also introduces the English School approach to the study ...
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This chapter examines how criminal justice helps to construct society by reaffirming common values at the moment they meet with opposition. It also introduces the English School approach to the study of international society and it describes how it provides a useful framework for analysing the issues raised by the International Criminal Court. The chapter clarifies the use of the pluralist and solidarist labels at the heart of the English School research agenda, summarises the main arguments of the book and sets out the chapter outline.Less
This chapter examines how criminal justice helps to construct society by reaffirming common values at the moment they meet with opposition. It also introduces the English School approach to the study of international society and it describes how it provides a useful framework for analysing the issues raised by the International Criminal Court. The chapter clarifies the use of the pluralist and solidarist labels at the heart of the English School research agenda, summarises the main arguments of the book and sets out the chapter outline.
Ian Clark
- Published in print:
- 2007
- Published Online:
- May 2007
- ISBN:
- 9780199297009
- eISBN:
- 9780191711428
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199297009.003.0009
- Subject:
- Political Science, International Relations and Politics
This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is ...
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This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is interested in norm cycles, and the means by which norms come to be disseminated internationally. Building on this work, the chapter argues that the idea of dissemination does not quite capture what in fact have been a series of strategic negotiations between international and world society, often coming during the major peace settlements at the end of wars. Historically, this has often also arisen out of a coalition of interest between powerful state actors, and civil society groups. It is suggested that the framework of negotiation between international and world society allows us to understand this process in a particular way. It also demonstrates how the absorption of norms from world society into international society has complicated the latter's practices of consensus. It opens up major new issues about how consensus is to be developed within world society about changing principles of international legitimacy. These issues are explored in the context of the WTO and G7/8, and illustrated by the Ottawa Convention on Landmines and the formation of the International Criminal Court.Less
This chapter locates the discussion in the context of the theoretical literature on international norms, particularly that by Martha Finnemore and Katherine Sikkink. Much of this literature is interested in norm cycles, and the means by which norms come to be disseminated internationally. Building on this work, the chapter argues that the idea of dissemination does not quite capture what in fact have been a series of strategic negotiations between international and world society, often coming during the major peace settlements at the end of wars. Historically, this has often also arisen out of a coalition of interest between powerful state actors, and civil society groups. It is suggested that the framework of negotiation between international and world society allows us to understand this process in a particular way. It also demonstrates how the absorption of norms from world society into international society has complicated the latter's practices of consensus. It opens up major new issues about how consensus is to be developed within world society about changing principles of international legitimacy. These issues are explored in the context of the WTO and G7/8, and illustrated by the Ottawa Convention on Landmines and the formation of the International Criminal Court.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.003.0004
- Subject:
- Political Science, Political Theory, International Relations and Politics
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those ...
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The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.Less
The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0018
- Subject:
- Law, Legal History
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the ...
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This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.Less
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.
Jann K. Kleffner
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780199238453
- eISBN:
- 9780191716744
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199238453.001.0001
- Subject:
- Law, Public International Law
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against ...
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The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.Less
The book examines the principle of complementarity in the Rome Statute of the International Criminal Court and the implications of that principle for the suppression of genocide, crimes against humanity, and war crimes on the domestic level. The book is set against the general background of the national suppression of these crimes, its potential and pitfalls. It traces the evolution of complementarity as a principle governing the allocation of the respective competences of the ICC and national criminal jurisdictions, and its translation into one of the central requirements for the admissibility of situations and cases before the ICC. It provides a critical and comprehensive analysis of the provisions in the Rome Statute and the Rules of Procedure and Evidence relevant to complementarity. In so doing, it addresses the notions of ‘unwillingness’ and ‘inability’, and the procedural framework for the application, invocation, and litigation of questions of admissibility. The early practice of the ICC in operationalizing complementarity is also considered. The book further devotes attention to the question whether and to what extent the Rome Statute in general, and the regulation of complementarity in particular, imposes on States Parties an obligation to investigate and prosecute core crimes domestically. In that context, it analyses the room for States to opt for substitutes of criminal proceedings, such as truth commission processes and the granting of amnesties. Finally, the book examines the potential of the complementary regime to function as a catalyst for States to conduct domestic criminal proceedings vis-à-vis core crimes.
Andrew Kuper
- Published in print:
- 2004
- Published Online:
- November 2004
- ISBN:
- 9780199274901
- eISBN:
- 9780191601552
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199274908.001.0001
- Subject:
- Political Science, International Relations and Politics
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously ...
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Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.Less
Global organizations are exercising unprecedented power–from the hallowed halls of the UN to the closed boardrooms of multinational corporations. Yet their leaders are often scandalously unaccountable to the people they claim to serve. How can we ensure that global leaders act responsively, and effectively, in the interests of the world’s people? In this lucid and provocative book, Andrew Kuper develops persuasive and practical answers.Democracy Beyond Borders criticizes conventional theories of justice and democracy that focus almost exclusively on the state and its electoral cycles. Kuper shows how non-state actors, such as corporations and civil society advocates, can be brought into multi-level government as partners with states. He presents an original theory of representation to answer the problem of accountability. At the core of this vision is a new separation of powers, in which different global actors check and balance one another in a complex harmony. This innovative framework complements electoral accountability and enables Kuper to recommend far-reaching reforms to the World Courts, the UN, and advocacy agencies including Transparency International.Democracy Beyond Borders stands at the forefront of a new generation of political thought, for which globalization is the challenge and deepening democracy the solution.
August Reinisch (ed.)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199595297
- eISBN:
- 9780191595752
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199595297.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book ...
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The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.Less
The challenging of acts of international organizations before national courts is the focus of this book. After the Kadi-hype following the 2008 European Court of Justice judgment, this book demonstrates that problems of judicial review of acts of international organizations are relevant in many organizations and in many different contexts. This book presents a broad picture concerning potential challenges of acts of international organizations before national courts. It covers such diverse international organizations as the United Nations itself, its subsidiary organs, such as the specialized international criminal courts for the former Yugoslavia and Rwanda, the European Patent Office, the European Schools, EUROCONTROL, OPEC, or INTERPOL. Building on the case law of domestic courts, the chapters highlight similar legal issues according to four introductory working hypotheses. They relate to the nature of judicial review of acts of international organizations, its interdependence with domestic methods of incorporating international law, to the conditions of a human rights-based review and to the inter-relationship between domestic challenges and the safeguard of the independent functioning of international organizations. The book's conclusion brings the different findings together and analyses them in the light of the initial working hypotheses. It also discusses whether attempts to secure a certain minimum level of legal protection against acts of international organizations through judicial review by national courts may contribute to securing greater accountability of international organizations.
Naomi Roht‐Arriaza
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780199240906
- eISBN:
- 9780191598869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199240906.003.0002
- Subject:
- Political Science, Democratization
The response of an incoming government to past crimes and gross violations of human rights depends primarily on a combination of domestic political, military and socioeconomic factors. However, ...
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The response of an incoming government to past crimes and gross violations of human rights depends primarily on a combination of domestic political, military and socioeconomic factors. However, international influences and institutions play an increasing role in shaping and affecting these processes. International efforts are in turn shaped partly by the perceived success or failure of domestic attempts to deal with the past. This chapter focuses on three areas in which these mutual influences manifest themselves: first, it examines the impact of international and transnational activity on the work of national courts, truth commissions, reparation schemes and political discourses about the past; second, it looks at the possibility of simultaneous actions in multiple arenas, since transnational justice also takes the form of legal actions brought in the national courts of one country against civil or criminal defendants based in another; the third area of influence discussed is the creation of new international institutions for accountability, although the extent to which these international efforts have influenced political or social reconstruction within societies is still unclear. The different sections of the chapter are: Introduction; Human Rights Institutions and Norms; Transnational Justice: The Pinochet Precedent; International Justice: The ‘Ad Hoc’ Tribunals and the ICC (International Criminal Court); and Conclusion.Less
The response of an incoming government to past crimes and gross violations of human rights depends primarily on a combination of domestic political, military and socioeconomic factors. However, international influences and institutions play an increasing role in shaping and affecting these processes. International efforts are in turn shaped partly by the perceived success or failure of domestic attempts to deal with the past. This chapter focuses on three areas in which these mutual influences manifest themselves: first, it examines the impact of international and transnational activity on the work of national courts, truth commissions, reparation schemes and political discourses about the past; second, it looks at the possibility of simultaneous actions in multiple arenas, since transnational justice also takes the form of legal actions brought in the national courts of one country against civil or criminal defendants based in another; the third area of influence discussed is the creation of new international institutions for accountability, although the extent to which these international efforts have influenced political or social reconstruction within societies is still unclear. The different sections of the chapter are: Introduction; Human Rights Institutions and Norms; Transnational Justice: The Pinochet Precedent; International Justice: The ‘Ad Hoc’ Tribunals and the ICC (International Criminal Court); and Conclusion.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0003
- Subject:
- Law, Public International Law, Legal Profession and Ethics
Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and ...
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Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and rules about the composition of the bench as a whole; the available pool of candidates; and the practice and priorities of member states. This chapter reviews the interplay of these factors as they affect the ICJ and the ICC. It also considers current debates and trends in relation to the composition of international courts more generally, including questions about the composition of the bench as a whole, in terms of geographic representation and the place of the five permanent members of the UN Security Council; the representation of different legal systems; the need for certain types of legal expertise and a particular combination of legal experience on the bench; and the promotion of gender balance.Less
Different factors determine the composition of the international bench. The most important are the court's governing rules and conventions, including individual selection criteria for judges and rules about the composition of the bench as a whole; the available pool of candidates; and the practice and priorities of member states. This chapter reviews the interplay of these factors as they affect the ICJ and the ICC. It also considers current debates and trends in relation to the composition of international courts more generally, including questions about the composition of the bench as a whole, in terms of geographic representation and the place of the five permanent members of the UN Security Council; the representation of different legal systems; the need for certain types of legal expertise and a particular combination of legal experience on the bench; and the promotion of gender balance.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0004
- Subject:
- Law, Public International Law, Legal Profession and Ethics
The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack ...
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The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack specificity as to the exact procedures to be followed. This chapter seeks to shed light on the nomination process, in the words of insiders who have been directly involved as candidates or potential candidates, decision-makers, or observers. The information gathered was drawn from a sample of the state parties of the two courts, with the aim of representing the range of approaches taken by states. It is shown that some insiders lack detailed understanding of the nomination processes even in their own states; as a result, accounts are fragmented and contradictory, and only a few well-informed insiders appear to be familiar with the details.Less
The nomination process is critical in determining the quality of judges selected to the ICJ and ICC. Both the ICJ and ICC Statutes cover the nomination processes but the rules are open-ended and lack specificity as to the exact procedures to be followed. This chapter seeks to shed light on the nomination process, in the words of insiders who have been directly involved as candidates or potential candidates, decision-makers, or observers. The information gathered was drawn from a sample of the state parties of the two courts, with the aim of representing the range of approaches taken by states. It is shown that some insiders lack detailed understanding of the nomination processes even in their own states; as a result, accounts are fragmented and contradictory, and only a few well-informed insiders appear to be familiar with the details.
Franklin E. Zimring
- Published in print:
- 2005
- Published Online:
- May 2012
- ISBN:
- 9780195181166
- eISBN:
- 9780199943302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195181166.003.0051
- Subject:
- Sociology, Law, Crime and Deviance
The use of a juvenile court for youth crime is almost universal throughout the developed nations. However, every American jurisdiction has provided for exceptions—circumstances and procedures that ...
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The use of a juvenile court for youth crime is almost universal throughout the developed nations. However, every American jurisdiction has provided for exceptions—circumstances and procedures that transfer those within the age boundaries of juvenile court to criminal court instead. This chapter is organized as follows. The first section argues that the necessity of transfers must be understood in the context of the functions and limits of juvenile courts. The second section examines three different structural accommodations to the need for serious punishment for a few youths: wholesale transfer of jurisdiction to criminal courts; the expansion of punishment powers available within the juvenile court so that even the most terrible crimes can meet their just deserts in a juvenile court; and the selective transfer of cases. The third section contrasts three different mechanisms for transfer: legislative standards that define both the necessary and sufficient causes for transfer; a legal framework that delegates power to judges to decide whether a particular case requires transfer; and a system that delegates total power to prosecutors. The concluding section describes a few of the minimum conditions necessary to justice at the interface between juvenile and criminal court.Less
The use of a juvenile court for youth crime is almost universal throughout the developed nations. However, every American jurisdiction has provided for exceptions—circumstances and procedures that transfer those within the age boundaries of juvenile court to criminal court instead. This chapter is organized as follows. The first section argues that the necessity of transfers must be understood in the context of the functions and limits of juvenile courts. The second section examines three different structural accommodations to the need for serious punishment for a few youths: wholesale transfer of jurisdiction to criminal courts; the expansion of punishment powers available within the juvenile court so that even the most terrible crimes can meet their just deserts in a juvenile court; and the selective transfer of cases. The third section contrasts three different mechanisms for transfer: legislative standards that define both the necessary and sufficient causes for transfer; a legal framework that delegates power to judges to decide whether a particular case requires transfer; and a system that delegates total power to prosecutors. The concluding section describes a few of the minimum conditions necessary to justice at the interface between juvenile and criminal court.
Ruth MacKenzie, Kate Malleson, Penny Martin, and Philippe Sands
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199580569
- eISBN:
- 9780191594489
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580569.003.0002
- Subject:
- Law, Public International Law, Legal Profession and Ethics
The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are ...
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The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are no principles or rules of general application governing the selection of judges at international level and there has been no clear elaboration of any one particular model of judicial selection. Different processes have developed for each court, arising from the particular circumstances in which it was established, and states have developed a heterogeneous set of models borrowed and adapted from one court to another. This chapter traces the key stages in the emergence of the various international judicial selection processes of the International Court of Justice (ICJ) and the International Criminal Court (ICC).Less
The design and operation of international judicial selection processes over the last century have taken place in the context of the ad hoc emergence of international courts and tribunals. There are no principles or rules of general application governing the selection of judges at international level and there has been no clear elaboration of any one particular model of judicial selection. Different processes have developed for each court, arising from the particular circumstances in which it was established, and states have developed a heterogeneous set of models borrowed and adapted from one court to another. This chapter traces the key stages in the emergence of the various international judicial selection processes of the International Court of Justice (ICJ) and the International Criminal Court (ICC).
Paul Christoph Bornkamm
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199694471
- eISBN:
- 9780191738326
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694471.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in ...
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Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.Less
Rwanda's Gacaca courts provide an innovative response to the genocide of 1994. Incorporating elements of both African dispute resolution and of Western-style criminal courts, Gacaca courts are in line with recent trends to revive traditional grassroots mechanisms as a way of addressing a violent past. Having been devised as a holistic approach to prosecution and punishment as well as to healing and repairing, they also reflect the increasing importance of victim participation in international criminal justice. This book critically examines the Gacaca courts' achievements as a mechanism of criminal justice and as a tool for healing, repairing, and reconciling the shattered communities. Having prosecuted over one million people suspected of crimes during the 1994 genocide, the courts have been both praised for their efficiency and condemned for their lack of due process. Drawing upon extensive observations of trial proceedings, this book provides a detailed analysis of the Gacaca legislation and its practical implementation. It discusses the Gacaca courts within the framework of transitional and international criminal justice and argues that, despite the trend towards local, tailor-made solutions to the challenges of political transition, there is a common set of principles to be respected in addressing the past. Evaluating the Gacaca courts against the backdrop of existing or emerging principles, such as the duties to investigate and prosecute, and the right to the truth, the book provides a sophisticated critique of Rwanda's reconciliation policy. In doing so, it contributes to the development and the clarification of these principles. It concludes that Gacaca courts have achieved a great deal in stimulating a basic discourse on the genocide, but they have also contributed to assigning collective responsibility and may thus end up deepening the divides within Rwandan society.
Franklin E. Zimring
- Published in print:
- 2005
- Published Online:
- May 2012
- ISBN:
- 9780195181166
- eISBN:
- 9780199943302
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195181166.003.0057
- Subject:
- Sociology, Law, Crime and Deviance
This chapter discusses the substantive principles that should govern the punishment of adolescents who kill. The first section shows that the stereotypical versions of juvenile and criminal courts ...
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This chapter discusses the substantive principles that should govern the punishment of adolescents who kill. The first section shows that the stereotypical versions of juvenile and criminal courts are not well suited to attain just results in adolescent homicides. The second section uses cases reported in the news to explore the multiple varieties of youth homicides. The third section uses the diminished responsibility and room-to-reform conceptions discussed in Chapter 5 as a method of exploring punishment principles for adolescent killers. The fourth section sets out specific case studies in the meaning of diminished responsibility: the ages at which homicide offenders should be considered to be partially but not fully responsible; appropriate methods for determining deserved punishments for adolescent killers; constructive homicide liability as a problem for the criminal law of adolescence; and capital punishment for young killers.Less
This chapter discusses the substantive principles that should govern the punishment of adolescents who kill. The first section shows that the stereotypical versions of juvenile and criminal courts are not well suited to attain just results in adolescent homicides. The second section uses cases reported in the news to explore the multiple varieties of youth homicides. The third section uses the diminished responsibility and room-to-reform conceptions discussed in Chapter 5 as a method of exploring punishment principles for adolescent killers. The fourth section sets out specific case studies in the meaning of diminished responsibility: the ages at which homicide offenders should be considered to be partially but not fully responsible; appropriate methods for determining deserved punishments for adolescent killers; constructive homicide liability as a problem for the criminal law of adolescence; and capital punishment for young killers.
Adam Branch
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199782086
- eISBN:
- 9780199919130
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199782086.003.0006
- Subject:
- Political Science, International Relations and Politics
Chapter 6 examines the politics of the International Criminal Court’s intervention in northern Uganda. It discusses the Court’s instrumentalization to the Uganda government’s political and military ...
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Chapter 6 examines the politics of the International Criminal Court’s intervention in northern Uganda. It discusses the Court’s instrumentalization to the Uganda government’s political and military interests and then proceeds to consider the political consequences stemming from the ICC’s administrative dimension, specifically from the discourse of the ICC as an agent of global law enforcement. It argues that ICC intervention can have deleterious effects on the capacity for autonomous political organization and action among civilian victims of violence by promoting their political dependency mediated by international law. It ends with a consideration of the reconfiguration of global justice in emancipatory directions and the place of international law within those projects.Less
Chapter 6 examines the politics of the International Criminal Court’s intervention in northern Uganda. It discusses the Court’s instrumentalization to the Uganda government’s political and military interests and then proceeds to consider the political consequences stemming from the ICC’s administrative dimension, specifically from the discourse of the ICC as an agent of global law enforcement. It argues that ICC intervention can have deleterious effects on the capacity for autonomous political organization and action among civilian victims of violence by promoting their political dependency mediated by international law. It ends with a consideration of the reconfiguration of global justice in emancipatory directions and the place of international law within those projects.
Dr. David Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.003.0008
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for ...
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This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.Less
This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.
Guenael Mettraux
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199559329
- eISBN:
- 9780191705304
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559329.003.0010
- Subject:
- Law, Criminal Law and Criminology, Public International Law
This chapter discusses each and every aspect of the relevant mens rea or state of mind relevant to the doctrine of superior responsibility both under customary international law and in the Statute of ...
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This chapter discusses each and every aspect of the relevant mens rea or state of mind relevant to the doctrine of superior responsibility both under customary international law and in the Statute of the International Criminal Courts. It reviews the three different categories of knowledge which, depending on the applicable law, would suffice to render a superior liable under that doctrine: ‘knew’, ‘had reason to know’, and ‘should have known’. It further makes it clear that knowledge of crimes committed by subordinates is not itself sufficient to engage a superior's criminal responsibility and that it would have to be established that he intentionally failed to fulfil his duties thereby demonstrating his acquiescent with the crimes. Simple negligence on his part would not be sufficient to engage his responsibility; only gross negligence would.Less
This chapter discusses each and every aspect of the relevant mens rea or state of mind relevant to the doctrine of superior responsibility both under customary international law and in the Statute of the International Criminal Courts. It reviews the three different categories of knowledge which, depending on the applicable law, would suffice to render a superior liable under that doctrine: ‘knew’, ‘had reason to know’, and ‘should have known’. It further makes it clear that knowledge of crimes committed by subordinates is not itself sufficient to engage a superior's criminal responsibility and that it would have to be established that he intentionally failed to fulfil his duties thereby demonstrating his acquiescent with the crimes. Simple negligence on his part would not be sufficient to engage his responsibility; only gross negligence would.
