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.
Andrew Altman and Christopher Heath Wellman
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199564415
- eISBN:
- 9780191721434
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564415.001.0001
- Subject:
- Political Science, Political Theory, International Relations and Politics
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal ...
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This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.Less
This book advances a novel theory of international justice that combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with the putatively antiliberal idea of an irreducibly collective right of self‐governance. The individual and his or her rights are placed at center stage insofar as political states are judged legitimate if they adequately protect the human rights of their constituents and respect the rights of all others. Yet, the book argues that legitimate states have a moral right to self‐determination and that this right is inherently collective, irreducible to the individual rights of the persons who constitute them. Exploring the implications of these ideas, the book addresses issues pertaining to democracy, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. A number of the positions taken in the book run against the grain of current academic opinion: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poorer one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would‐be immigrants.
Shane Darcy and Joseph Powderly (eds)
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these ...
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As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.Less
As the International Criminal Tribunals for the former Yugoslavia and Rwanda enter the final phase of their work, it is an appropriate time to reflect on the significant contribution that these unique institutions have made to the development of international criminal law. Judgments issued by the ad hoc tribunals have served to clarify and elucidate key concepts and principles of international criminal law. On several occasions, this practice and jurisprudence has pushed the progressive development of this dynamic and growing branch of international law. This book examines the specific development of international criminal law by the Rwanda and Yugoslavia tribunals in the areas of sources of law, substantive crimes, criminal liability, defences, fair trial rights, and procedure. Several chapters address the theories of interpretation employed by judges at the ad hoc tribunals and the challenges presented by judicial creativity in international criminal trials. This book provides a thoughtful analysis by scholars, practitioners, and judges of the profound changes in the field that are attributable to the judicial creativity demonstrated at the International Criminal Tribunals for Rwanda and the former Yugoslavia.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.001.0001
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious ...
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Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.Less
Criminal punishment is increasingly regarded as a necessary element of human rights protection. There is a growing conviction at the international level that those responsible for the most serious crimes should not go unpunished. Though there is a wealth of legal writing on international criminal law, the question why and to what extent criminal prosecution is a necessary means of human rights protection has hardly been addressed comprehensively. This book examines the duty to prosecute serious human rights violations. It does so by exploring the concepts of impunity and amnesties, and by exposing flaws in criminal proceedings. With its survey of the relevant human rights instruments and jurisprudence, the subject of this book is placed at the interface of international criminal law and international human rights. The book analyses the rapidly growing body of human rights case law, dealing with criminalization, prosecution, and punishment of serious human rights violations. It identifies and critically examines the standards for the conduct of criminal proceedings developed by the European and Inter-American Courts of Human Rights and the UN Human Rights Committee. As the analysis reveals shortcomings in the current conceptualization of the prosecution of human rights violations, the book develops a solid theoretical framework for future jurisprudence. By evaluating the relationship between criminal law and the protection of human rights, the book elucidates not only the potential but also the limits of the role human rights law can play in the emerging concept of international criminal justice. The underlying rationale for prosecuting serious human rights violations is also relevant for post-conflict situations, in which it is often argued that criminal punishment threatens peace and reconciliation. The question how to deal with post-conflict justice under international law is a continuing theme throughout the book.
Menno T. Kamminga and Martin Scheinin (eds)
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199565221
- eISBN:
- 9780191705281
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199565221.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and ...
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Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.Less
Traditional international law aims to protect the values and interests of states. The rapidly increasing corpus of international human rights law (including international humanitarian law and international criminal law) increasingly challenges the basic tenets of general international law. In order to become accepted as the law of the world community, general international law needs to reflect better the values and interests of a wider range of actors, including the individual. This book examines the impact of international human rights law on general international law. It considers areas including the structure of international obligations, the formation of customary international law, treaty law, immunities, state responsibility, and diplomatic protection. The book traces the extent to which concepts emanating from international human rights law are being incorporated by the guardians of traditional international law: the International Court of Justice and the International Law Commission.
Shane Darcy
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. ...
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This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.Less
This chapter explores how judicial creativity at the ad hoc Tribunals has led to a reinvention of the law of war crimes, arguably the most far-reaching jurisprudential contribution of the Tribunals. It considers the ground-breaking Tadić jurisprudence relating to grave breaches and ‘violations of the laws and customs of war’, and explores how the formulation for war crimes devised by the Appeals Chamber has been followed with regard to specific offences. The chapter looks at a potential downside of such expansive conceptions of the law in terms of a possible compromising of the principle nullum crimen sine lege. Given the nature of the Rome Statute of the International Criminal Court, it is argued that the culmination of the work of the ad hoc Tribunals may mark the end of an era of judicial creativity in the context of the international law of war crimes.
Mohamed Shahabuddeen
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199670826
- eISBN:
- 9780191751523
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199670826.001.0001
- Subject:
- Law, Public International Law, Criminal Law and Criminology
International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International ...
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International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.Less
International criminal justice has undergone rapid recent development. Since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, and the International Criminal Tribunal for Rwanda (ICTR) in the following year, the field has changed beyond recognition. The traditional immunity of presidents or heads of government, prime ministers, and other functionaries acting in an official capacity no longer prevails; the doctrine of superior orders is inapplicable except, where appropriate, as in mitigation; and the gap between international armed conflict and non-international armed conflict has closed. More generally, the bridge has been crossed between the irresponsibility of the state and the criminal responsibility of the individual. As a result, the traditional impunity of the state has practically gone. This book assesses some of the workings of the ICTY that have shaped these developments. It provides an insightful overview of the nature of this criminal court, established on behalf of the whole of the international community. It reflects on its transformation into one of the leading fora for the growth of international criminal law first-hand, offering a unique perspective on the challenges it has faced.
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.
Caroline Fournet
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0011
- Subject:
- Law, Human Rights and Immigration, Public International Law
While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the ...
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While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.Less
While necessarily central to the efficacy and legitimacy of international criminal justice, the law relating to the permissible defences is yet to be definitively codified. The Statutes of both the Yugoslavia and Rwanda Tribunals are ambiguous as to the defences that may be raised with such questions being left to the discretion of the bench. This chapter looks at the manner in which the ICTY and ICTR have gone about developing the law of defences in the international criminal context. It looks at issues including the use of the principle of legality as a defence ‘of sorts’, while looking at more traditionally identifiable defences such superior orders, duress, mental incapacity, self-defence, and tu quoque. It is clear that in the absence of any clear guidelines the ad hoc Tribunals have had at times to engage in creative judicial interpretation on the question of defences.
David L. Nersessian
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199588909
- eISBN:
- 9780191594557
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588909.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international ...
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This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international law, as well as a theoretical analysis of whether political genocide should be recognized as a separate crime by the international community. The book analyses whether a stand-alone crime of political genocide should be recognized under international law. It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime. It then demonstrates that other international offences—notably crimes against humanity and war crimes—are not workable substitutes for a specific offence that protects political groups. This is followed by an analytical study of the protection of human groups under international law. The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence. It then applies this ‘rights-based approach’ in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction ‘as such’. The writing includes an analysis of state practice and opinio juris on the treatment of political groups. It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law. In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.Less
This book provides an examination of the crime of genocide in connection with political groups. It offers an empirical study of the current status of political groups under customary international law, as well as a theoretical analysis of whether political genocide should be recognized as a separate crime by the international community. The book analyses whether a stand-alone crime of political genocide should be recognized under international law. It begins by examining the historical development of genocide and critically assessing the unique requirements of the crime. It then demonstrates that other international offences—notably crimes against humanity and war crimes—are not workable substitutes for a specific offence that protects political groups. This is followed by an analytical study of the protection of human groups under international law. The book proposes a new theory that links the protection of groups to individual rights of a certain character that give rise to the group's existence. It then applies this ‘rights-based approach’ in evaluating whether political groups are legitimate candidates for specific protection from physical and biological destruction ‘as such’. The writing includes an analysis of state practice and opinio juris on the treatment of political groups. It empirically refutes claims that political groups are protected already from genocide by virtue of post-Convention developments in customary international law. In response to this legal reality, however, the book analyses the theoretical and public policy justifications for international criminal law and demonstrates that the international community would be well served by creating a separate international crime to address political genocide.
Fabián O Raimondo
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general ...
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This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.Less
This chapter examines the manner in which the ad hoc International Criminal Tribunals have utilized general principles of law in filling substantive and procedural legal gaps. While general principles of law are recognized as secondary sources of law under Article 38(1) of the Statute of the International Court of Justice, they have nevertheless acted as important springboards towards judicial creativity in the international criminal law context. This chapter examines some of the relevant case-law and shows that general principles of law as identified by the bench have been used to surmount statutory lacunae. Of particular interest in this regard is the ad hoc Tribunals' reliance on notions pertaining to their inherent powers in order to examine issues such as institutional legitimacy and obstruction of justice. The chapter concludes with a comment on the prospects for the future role of general principles of law in the jurisprudence of the International Criminal Court.
Anja Seibert-Fohr
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199569328
- eISBN:
- 9780191721502
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569328.003.0008
- Subject:
- Law, Human Rights and Immigration, Criminal Law and Criminology
Since this entire study provides evidence of a growing convergence of human rights and international criminal law, this last chapter presents an evaluation of that new trend in international law. It ...
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Since this entire study provides evidence of a growing convergence of human rights and international criminal law, this last chapter presents an evaluation of that new trend in international law. It encapsulates the insight gained from the preceding analysis and considers the role human rights law should play in the emerging concept of global justice in order to guide the future. With respect to victims rights, it cautions against the assumption of a right to justice and summarizes the counter-arguments. Though advocating a prima facie obligation to prosecute serious human rights violations, the chapter militates against an absolute prohibition of amnesties and advocates a balancing approach. The chapter concludes with a caveat not to use human rights law to extend the scope of international criminal law without a firm legal basis.Less
Since this entire study provides evidence of a growing convergence of human rights and international criminal law, this last chapter presents an evaluation of that new trend in international law. It encapsulates the insight gained from the preceding analysis and considers the role human rights law should play in the emerging concept of global justice in order to guide the future. With respect to victims rights, it cautions against the assumption of a right to justice and summarizes the counter-arguments. Though advocating a prima facie obligation to prosecute serious human rights violations, the chapter militates against an absolute prohibition of amnesties and advocates a balancing approach. The chapter concludes with a caveat not to use human rights law to extend the scope of international criminal law without a firm legal basis.
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/9780199588909.003.0006
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the ...
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This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.Less
This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.
Gideon Boas
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0010
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter looks at the development of aiding and abetting by omission as a form of individual criminal responsibility by the ad hoc Tribunals. In a critical analysis of the existing case law, it ...
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This chapter looks at the development of aiding and abetting by omission as a form of individual criminal responsibility by the ad hoc Tribunals. In a critical analysis of the existing case law, it argues that there is no basis for this form of individual liability in customary international law. It identifies specific instances in which the reasoning of both the Yugoslav and Rwanda Tribunals has been left wanting on this question. Particularly concerning in this regard is the inconsistent methodology that has been utilized in the identification of customary international norms. Taking the recent challenge to the customary foundations of omission liability in the Karadžić case, the chapter concludes that this form of liability has not been coherently and convincingly established in international law.Less
This chapter looks at the development of aiding and abetting by omission as a form of individual criminal responsibility by the ad hoc Tribunals. In a critical analysis of the existing case law, it argues that there is no basis for this form of individual liability in customary international law. It identifies specific instances in which the reasoning of both the Yugoslav and Rwanda Tribunals has been left wanting on this question. Particularly concerning in this regard is the inconsistent methodology that has been utilized in the identification of customary international norms. Taking the recent challenge to the customary foundations of omission liability in the Karadžić case, the chapter concludes that this form of liability has not been coherently and convincingly established in international law.
Shane Darcy and Joseph Powderly
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This introductory chapter sets the foundations for the ensuing discussion of the role of judicial creativity in the development of core aspects of international criminal law as evidenced in the ...
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This introductory chapter sets the foundations for the ensuing discussion of the role of judicial creativity in the development of core aspects of international criminal law as evidenced in the jurisprudence of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. It is clear that at the time of the creation of the Tribunals in the early 1990s international criminal law was substantively and procedurally rudimentary. However, some fifteen years later and as they move towards the completion of their mandates, it is an appropriate time to examine their jurisprudential legacy. This undoubtedly substantial legacy is owed in no small measure to the creative enterprises of their respective benches. The chapter outlines the various broad areas in which judicial creativity is especially evident and provides an overview of the subsequent chapters in the collection.Less
This introductory chapter sets the foundations for the ensuing discussion of the role of judicial creativity in the development of core aspects of international criminal law as evidenced in the jurisprudence of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda. It is clear that at the time of the creation of the Tribunals in the early 1990s international criminal law was substantively and procedurally rudimentary. However, some fifteen years later and as they move towards the completion of their mandates, it is an appropriate time to examine their jurisprudential legacy. This undoubtedly substantial legacy is owed in no small measure to the creative enterprises of their respective benches. The chapter outlines the various broad areas in which judicial creativity is especially evident and provides an overview of the subsequent chapters in the collection.
Joseph Powderly
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial ...
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The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.Less
The absence from the Statutes of the ad hoc Tribunals of a provision explicitly setting down the interpretational methodology to be applied by the bench ensured that the only barrier to judicial creativity was the principle of legality and fidelity to customary international law. While the laconic nature of the Statutes may have weakened the traditional shackles on judicial law-making, they also gave rise to an element of interpretational uncertainty. This chapter shows that the application of these rules, particularly with respect to customary international law, has been at best unpredictable. It examines the manner in which the ad hoc Tribunals have applied the rules of interpretation which appear to have been open to them by analogy. It argues that the application of these rules, while for the most part justified, was frequently chaotic and unsystematic. The results obtained, however, were undoubtedly responsible for the progressive development of international criminal and humanitarian law.
Larissa van den Herik
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0005
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad ...
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This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.Less
This chapter examines the customary international law basis for the development of the definition of crimes against humanity before the ad hoc Tribunals. It argues that the approach taken by the ad hoc Tribunals to the identification of custom has been inconsistent and at times has relied on questionable deductions from case-law. Close attention is placed on the domestic case-law deemed to be representative of opinio juris on the elements of the offence, such as the nexus with an armed conflict, the presence of discriminatory intent, and the requirement of a specific state policy or plan. The chapter shows that in a good number of instances the case-law cited does not support the conclusion reached, thereby illustrating that this flexible approach to customary law is being used not as a source of law but rather as a possible means of legitimizing pre-ordained judicial determinations.
Elies van Sliedregt
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199560363
- eISBN:
- 9780191738623
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199560363.003.0009
- Subject:
- Law, Public International Law, Criminal Law and Criminology
Codifiers in international criminal law have not been at ease with the subject of defences. They have focused on eliminating defences rather than on defining them. This chapter discusses defences ...
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Codifiers in international criminal law have not been at ease with the subject of defences. They have focused on eliminating defences rather than on defining them. This chapter discusses defences that are listed in Article 31 of the International Criminal Court Statute and all have a different nature and pedigree, which accounts for a differing format in analyzing them. It looks at the text, including the drafting history, and relevant international jurisprudence. As with the modes of liability dealt with in Chapter 6, the concepts discussed have a national pedigree and are analyzed by adding a comparative perspective. Especially in an area where international practice is scant, national criminal law has an important role to play, if only for the sake of understanding the scope and content of the various concepts.Less
Codifiers in international criminal law have not been at ease with the subject of defences. They have focused on eliminating defences rather than on defining them. This chapter discusses defences that are listed in Article 31 of the International Criminal Court Statute and all have a different nature and pedigree, which accounts for a differing format in analyzing them. It looks at the text, including the drafting history, and relevant international jurisprudence. As with the modes of liability dealt with in Chapter 6, the concepts discussed have a national pedigree and are analyzed by adding a comparative perspective. Especially in an area where international practice is scant, national criminal law has an important role to play, if only for the sake of understanding the scope and content of the various concepts.
Mohamed Shahabuddeen
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0009
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint ...
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This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.Less
This chapter examines the theory of joint criminal enterprise as a form of criminal liability before the ad hoc Tribunals. It provides a comparative analysis of the competing doctrines of joint criminal enterprise and co-perpetratorship, and considers that neither form of criminal liability can claim the status of customary international law. The chapter looks at the mental element required for the third category of joint criminal enterprise, which can be problematic in the context of specific intent crimes. It justifies the ad hoc Tribunals' reliance on the creativity of the bench, whereby new law is fashioned on the basis of the policy of the law as can be extracted from its roots. It argues that judicial creativity can be used if there is a gap in the law which would prevent a court from dispensing justice under its constituent instrument.
Robert Cryer
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199591466
- eISBN:
- 9780191595585
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199591466.003.0008
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form ...
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This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.Less
This chapter looks at the judicial development of the doctrine of command responsibility before the ad hoc Tribunals. It demonstrates that despite command responsibility having a firm basis as a form of individual liability within the constituent statutes of both the Yugoslav and Rwanda Tribunals, its substantive development has nonetheless been dependent on creative judicial interpretation. In examining one particular limb of the doctrine, the chapter deconstructs the reasoning of majority and minority opinions in the Hadžihasanović and Oric cases showing not only the tensions between individual members of the bench but also the obvious reluctance to engage in what may be viewed as excessive judicial creativity.
