The trial of Jean-Paul Akayesu is by far the most well known and widely discussed case at the International Criminal Tribunal for Rwanda, a distinction that can be attributed to the fact that it was groundbreaking for several reasons. However, with regard to the importance of this trial both as a precedent for subsequent ICTR cases and within the broader context of international jurisprudence, its most significant contribution has undoubtedly been the recognition and prosecution of (...) rape as a means of perpetrating genocide. The task of collecting admissible evidence to that end was heavily impacted by the necessity of interpreting and translating witness testimonies from their original language of expression, Kinyarwanda, into the working languages of the Tribunal, French and English. The multiple challenges associated with this translation process concerned not only questions of semantic equivalence of specific lexical terms. They also highlighted the considerable ‘cultural collision’ that occurred in the courtroom between the Rwandan witnesses and the international judiciary. This article elucidates the complex task faced by the courtroom interpreters in navigating these linguistic and sociocultural considerations underpinning the evocations of rape within the evidentiary framework of the Akayesu trial. (shrink)

On 25 May 1993 the United Nations Security Council took the extraordinary and unprecedented step of deciding to establish the International Criminal Tribunal for the Former Yugoslavia as a mechanism for the restoration and maintenance of international peace and security. This was an extremely significant innovation in the use of mandatory enforcement powers by the Security Council, and the manifestation of an explicit link between peace and justice - politics and law. The establishment of ad hoc (...) tribunals for the former Yugoslavia and Rwanda was followed by the adoption of the Rome Statute of the ICC in July 1998, the arrest of General Augusto Pinochet in London in October 1998, and the establishment of ad hoc tribunals in Cambodia, Sierra Leone, and East Timor, all of which pointed to an emerging norm of international criminal justice. The key to understanding this is the relationship between the political mandate and the judicial function. The Tribunal was established as a tool of politics, but it was a judicial, not a political tool.This book provides a systematic examination of the Tribunal, what it is, why it was established, how it functions, and where its significance lies. The central question is whether an international judicial institution, such as the Tribunal, can operate in a highly politicized context and fulfill an explicit political purpose, without the judicial process becoming politicized. Separate chapters chart the origins of the court, the process of establishment, jurisdiction, procedure, state co-operation, including obtaining custody of accused, and the role and function of the Chief Prosecutor. This last element is the key to the Tribunal's success in maintaining a delicate balancing act so that its external political function does not impinge on its impartial judicial status, and instead enhances its effectiveness. The book concludes with an assessment of the conduct of the Milosevic case to date. (shrink)

The International Criminal Tribunal for Yugoslavia was established by the UN Security Council in 1993 to prosecute persons responsible for war crimes committed in the former Yugoslavia during the Balkan wars. As the first international war crimes tribunal since the Nuremburg and Tokyo tribunals set up after WWII, the ICTY has attracted immense interest among legal scholars since its inception, but has failed to garner the same level of attention from researchers in other disciplines, notably (...) linguistics. This represents a significant research gap, as the Tribunal’s public discourse can open up interesting avenues of analysis to researchers of law, language, and legal discourse alike. On its official website, the Tribunal claims that it has “irreversibly changed the landscape of international humanitarian law” and lists six specific achievements: “Holding leaders accountable; bringing justice to victims; giving victims a voice; establishing the facts; developing international law and strengthening the rule of the law”. While a number of legal scholars have studied and critiqued the level of ‘achievement’ actually attained by the Tribunal against these metrics and others, of interest to linguists is the ways in which this work might be conveyed discursively. In this paper, we demonstrate how methods from the linguistic field of corpus-based critical discourse analysis can be utilised to explore the discursive construction of such achievements in the language of the ICTY. (shrink)

The Special Court for Sierra Leone and the Extraordinary Chambers for Cambodia represent a departure from the model established by the International Criminal Tribunal for the former Yygoslavia and the International Criminal Tribunal for Rwanda. The SCSL and the ECC have often been referred to as “mixed” or “hybrid” tribunals in which there are significant domestic and international components. The tribunals include a combination of domestic and international judges, utilize domestic and (...) international laws and are administered by a prosecutorial team composed of domestic and international lawyers. Many of these institutional changes have been brought about because of criticisms of the ICTY and the ICTR. The fundamental question of this article is whether these mixed tribunals are a more effective mechanism for providing justice and reconciliation than purely international solutions. This is an important question because both the international community and states are moving in the direction of mixed tribunals. (shrink)

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of (...) international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions. (shrink)

The tradition of international criminal tribunals which started with the Nuremberg and Tokyo tribunals was returned with the International Criminal Tribunal for the former Yugoslavia. As a result of the bloody wars in the territory of the former Yugoslavia in the 1990s, the Security Council of the United Nations decided to establish the ICTY as an ad hoc tribunal, that was approved by the resolutions 808 and 827. The main purpose of the paper is (...) to highlight the features of the ICTY during its mandate from 1993 to 2017. For the realization of this research are used qualitative methods, based on the bibliography that is related with international criminal law, with special emphasis with the activities of international criminal tribunals. Furthermore, some data are also collected from the credible internet sources, which have valuable information about the procedures of the ICTY and for the International Residual Mechanism for Criminal Tribunals. The results of the study demonstrate that during its mandate, the ICTY was accompanied with a lot of successes which distinguish it from the other international criminal tribunals. At the same time, the ICTY has also a lot of failures, which have come as a result of various political influences within it. The conclusions of this paper aim to increase knowledge about the activity of the ICTY, by offering important information for its establishment and organs, and for its main successes and failures. (shrink)

International criminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of international criminal tribunals impact compliance with arrest warrants: through (...) the selection of individuals to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of international criminal law. (shrink)

RESUMEN: La labor del Tribunal Penal Internacional para la Ex-Yugoslavia tuvo un momento importante en la compresión del principio de legalidad, como principio básico en la garantía de los derechos humanos, al enfrentar no sólo el derecho consuetudinario como fuente de derecho sino también diferentes modos o enfoques en la identificación de este derecho consuetudinario. Esta relación debe ser analizada a la luz de las limitaciones que tiene el derecho internacional y, sobre todo, de los procedimientos de creación de (...) normas. No resulta fácil exigir responsabilidad en el cumplimiento del derecho internacional humanitario y de los derechos humanos. La práctica de este Tribunal abre una vía para la reflexión con la finalidad de asegurar el respeto de los derechos humanos en cualquier circunstancia, incluso de aquellos que llevaron a cabo la comisión de graves crímenes contra la comunidad internacional.ABSTRACT: The work of the International Criminal Tribunal for the former Yugoslavia was important for understanding the principle of legality as a key principle on the guarantee of Human Rights. The former was due to the Tribunal’s work on having faced the customary law as a source of law using different perspectives for its identification. The link between customary law, principle of legality and human rights has to be analyzed taking in account the limits of International law and the procedures for creating legal norms. It is not easy to invoke responsibility in the fulfillment of international humanitarian law and international law of human rights. The practice developed by this Tribunal provides an avenue for thinking about ensuring the respect of the human rights in any case including the commission of grave crimes against international community. PALABRAS CLAVE: derecho internacional de los derechos humanos, principio de legalidad, derecho internacional humanitario, costumbre internacionalKEYWORDS: international law of human rights, principle of legality, international humanitarian law, international custom. (shrink)

The United Nations ad hoc tribunals in the former Yugoslavia and Rwanda had primacy over national judicial agents for crimes committed in these countries during the most notorious civil wars and genocide of the 1990s. The UN Charter granted the Security Council the right to establish a tribunal for Yugoslavia in the context of ongoing civil war and against the will of recalcitrant national agents. The Council used that same right to punish individuals responsible for a genocide that (...) it failed earlier to prevent in Rwanda. In both cases the Council delegated a portion of its coercive title to independent tribunal agents, thereby overriding the default locus of punishment in the world order: sovereign states. (shrink)

This paper argues that Rwanda’s decision to abolish the death penalty should be viewed in a wider context rather than as a mere result of top–down pressure from the International Criminal Tribunal for Rwanda (ICTR). Part I traces the creation of the ICTR and the breakdown of negotiations as a result of the exclusion of the death penalty from the ICTR’s jurisdiction. It then outlines Rwanda’s efforts to prosecute the hundreds of thousands of individuals (...) accused of committing genocide-related crimes and notes the limited and steadily decreasing role the death penalty actually played within Rwanda. Part II discusses Rwanda’s legislation abolishing the death penalty and argues that both international pressure and local historical and political forces influenced the decision. Part III situates Rwanda’s story within a growing paradox of excluding the death penalty from international criminal tribunals for the most serious crimes while national jurisdictions maintain it. It concludes that as in Rwanda, any perceived or potential impact of international criminal law in national jurisdictions must be measured in light of local circumstances. (shrink)

International law scholars and lawyers can rely on The Global Community Yearbook to better understand the wealth of case law now emanating from international courts and tribunals. Two new volumes each year include in-depth articles addressing topics of jurisprudence, while shorter notes explore current legal issues and provide context for the year's cases, which comprise the majority of the set. The editor, Giuliana Ziccardi Capaldo, has assembled a comprehensive look at the present and future development of the (...) class='Hi'>international legal order. Each major international court or tribunal has its own section, which includes an introductory article on the activity of that organization over the course of the year. The activities of the court and tribunals are presented in the form of "legal maxims," that distil the most important elements of the legal decisions of the past year and that provide researchers with quick access to the relevant point of law in each case. The cases themselves are indexed within each court's section, and then again in a general index for the entire set. Contributed to by leading legal experts, The Global Community Yearbook addresses the major developments in the courts and tribunals, providing a valuable resource for anyone wishing to better understand the functions, decisions and structure of the international legal courts. International Courts and Tribunals covered include: International Court of Justice International Tribunal for the Law of the Sea WTO Dispute Settlement System International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Court of First Instance and Court of Justice of the European Communities European Court of Human Rights Inter-American Court of Human Rights Iran-U.S. Claims Tribunal International Centre for Settlement of Investment Disputes. (shrink)

Transitionaljustice mechanisms and the International Criminal Tribunal for the FormerYugoslavia (ICTY) have had only a limited success in overcoming ethnic divisionsin Bosnia-Herzegovina. Rather than elaborating upon the role of local politicalelites in perpetuating ethnic divisions, we examine ordinary peoples’ popularperceptions of war and its aftermath. In our view, the idea that elites havecomplete control over the broader narratives about the past is misplaced. Weargue that transitional justice and peace mechanisms supported by externalactors are always interpreted on the (...) ground in context-specific ways, creatingdifferent citizens’ experiences, “memories” of the war, and their respectivehopes and disappointments in regards to the relationship between peace andjustice in Bosnia. We suggest that analyses of the post-conflict developments inBosnia-Herzegovina must take into account what gives the narratives ofexclusion their power, and what are the objective political, social andeconomic constraints that continue to provide a fertile ground for theirwidespread support. (shrink)

International law scholars and lawyers can rely on The Global Community Yearbook to better understand the wealth of case law now emanating from international courts and tribunals. Two new volumes each year include in-depth articles addressing topics of jurisprudence, while shorter notes explore current legal issues and provide context for the year's cases, which comprise the majority of the set. The editor, Giuliana Ziccardi Capaldo, has assembled a comprehensive look at the present and future development of the (...) class='Hi'>international legal order. Each major international court or tribunal has its own section, which includes an introductory article on the activity of that organization over the course of the year. The activities of the court and tribunals are presented in the form of "legal maxims," that distil the most important elements of the legal decisions of the past year and that provide researchers with quick access to the relevant point of law in each case. The cases themselves are indexed within each court's section, and then again in a general index for the entire set. Contributed to by leading legal experts, The Global Community Yearbook addresses the major developments in the courts and tribunals, providing a valuable resource for anyone wishing to better understand the functions, decisions and structure of the international legal courts. International Courts and Tribunals covered include: International Court of Justice International Tribunal for the Law of the Sea WTO Dispute Settlement System International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Court of First Instance and Court of Justice of the European Communities European Court of Human Rights Inter-American Court of Human Rights Iran-U.S. Claims Tribunal International Centre for Settlement of Investment Disputes. (shrink)

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality (_lex praevia_, _scripta_, and _stricta_ – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying _ex post facto_ criminal laws. This approach, the (...) relaxation of the concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value of positive law (if we claim that the validity of the law depends on it respecting supra-positive minimums of justice), we must also face the problem of the definition of supra-positive values, the epistemological difficulties of having access to them (Sect. 5), and the question of the scope and enforceability of supra-positive law (Sect. 6). In summary, this article aims to explain why Radbruch’s formula offers a convincing conceptual basis for international criminal legality and, in doing so, aims to contribute to the discussion about the foundations of ICL. (shrink)

One of the most significant shifts in current thinking on war and gender is the recognition that rape in wartime is not a simple by-product of war, but often a planned and targeted policy. For many feminists ‘rape as a weapon of war’ provides a way to articulate the systematic, pervasive, and orchestrated nature of wartime sexual violence that marks it as integral rather than incidental to war. This recognition of rape as a weapon of war has taken on legal (...) significance at the Rwandan and Yugoslav Tribunals where rape has been prosecuted as a crime against humanity and genocide. In this paper, I examine how the Rwanda Tribunal’s record of judgments conceives of rape enacted as an instrument of the genocide. I consider in particular how the Tribunal’s conception of ‘rape as a weapon of war’ shapes what can be known about sexual violence and gender in the Rwandan genocide and what cannot, the categories of victims legally recognised and those that are not, and the questions pursued, and those foreclosed, about the patterns of violence before and during the genocide. (shrink)

In the last two decades there has been a meteoric rise of international criminal tribunals and courts and also a strengthening chorus of critics against them. Today it is hard to find strong defenders of international criminal tribunals and courts. This book attempts such a defense against an array of critics. It offers a nuanced defense, accepting many criticisms but arguing that the idea of international criminal tribunals can be defended as providing the fairest (...) way to deal with mass atrocity crimes in a global arena. Fairness and moral legitimacy will be at the heart of this defense. The authors take up the economic and political arguments that have been powerfully expressed, as well as arguments about sovereignty, punishment, responsibility, and evidence; but in the end they show that these arguments do not defeat the idea of international criminal courts and tribunals. (shrink)

Alors que le Tribunal de Nuremberg n’avait pas traité spécifiquement des crimes sexuels ou du genre des victimes, depuis une vingtaine d’années, l’évolution du droit international, notamment pénal, a été marquée par une prise en compte de la dimension sexuée des crimes de guerre, des crimes contre l’humanité et des génocides. Les tribunaux pénaux internationaux pour l’ex-Yougoslavie (TPIY), celui pour le Rwanda (TPIR) et la Cour pénale internationale (CPI) ont porté une attention particulière aux violences sexuelles et (...) aux femmes victimes de guerre. Pourtant les femmes ne sont pas dans une simple relation binaire aux lois de la guerre, en position de victimes (potentielles) ou d’actrices (moins probables) de leurs violations. Elles peuvent avoir d’autres rôles d’actrices de leur élaboration ou application, à titre d’enquêtrices, procureures, avocates ou juges, témoins ou expertes. Cet état de la recherche considérera d’abord les tribunaux internationaux comme producteur et médium de la recherche sur les femmes et les lois de la guerre. Il envisagera ensuite la diversité des figures féminines, sujets ou objets de ce droit et de cette justice : juristes, criminelles, victimes ou combattantes. Significativement, des questionnements semblables se retrouvent dans ces différents cas : la « féminité » est-elle un facteur explicatif spécifique ou finalement secondaire, un stéréotype à déconstruire? Y a-t-il une continuité entre temps de paix et temps de guerre dans le rapport des femmes à la violence criminelle? La limitation des rôles féminins est-elle le produit d’un droit international étatique ou l’expression plus large d’une domination masculine dans les pratiques guerrières? (shrink)

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the (...) authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)

The world's first permanent international criminal tribunal for the prosecution and punishment of the world's most serious crimes was created in 2002. In Bringing Power to Justice? legal scholars, political scientists, and political philosophers respond to fundamental questions about the future of this court and international criminal justice. For instance, will the ICC be undermined by political constraints, given the opposition of major powers, including the United States? What are the implications of holding heads of (...) state responsible for international crimes? Are trials the best response to state crime or would other devices (such as truth commissions) be more suitable? Is retributive justice an appropriate response? The contributors offer indispensable and thoughtful assessment of the future of international criminal justice. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, (...) both at the level of the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

This paper examines the ‘deep-end’ of the international justice process—the incarceration of persons convicted in specially constituted international criminal tribunals and courts for gross violations of human rights, genocide, crimes against humanity and war crimes with a focus on language rights of such prisoners who are commonly serving sentences in foreign prisons. The punishment phase of the international justice process and its effects are not easily quantifiable and have been largely hidden from view. Although international (...) criminal law asserts that equal treatment before the law requires that there be no significant disparity in punishment regimes from one sentence-enforcing country to another, comparative penology shows that there are considerable differences in the conditions of confinement and the nature of correctional services in the prison systems of different countries. This has a direct impact on post-sentence procedural and rehabilitation rights of which language rights from a key part. In this specific context, and drawing from existing literature, the paper therefore examines the extent to which enforcement practice conforms to the ideal of equal treatment espoused by the tribunals. (shrink)

Does the establishment of a permanent InternationalWar Crimes Tribunal (International Criminal Court - ICC) constitute a challenge to national sovereignty? According to previous US governments and several American observers, the answer is yes. Establishing a world court that acts independently of the states that gave birth to it renders the idea of sovereignty meaningless. This article analyzes the American objections to the ICC and the conception of sovereignty and international law underlying these objections. It first considers (...) the structure and intent behind the criminal court and attempts to unveil the logic hiding behind the idea of ‘America’s historical uniqueness.’ It touches on the diverging US and European conceptions of sovereignty and ends up arguing that governments that stick to traditional conceptions of sovereignty and international law in the employment of their foreign policy may lose the moral legitimacy that has proven increasingly important for winning the sympathy of allies and regaining world leadership. Keywords: The ICC; US opposition to the court; sovereignty; international law; exceptionalism (Published: 19 May 2009) Citation: Ethics & Global Politics, Vol. 2, No. 2, 2009, pp. 83-108. DOI: 10.3402/egp.v2i2.1973. (shrink)

Recent scholarship has given increasing attention to studying women’s involvement in conflict and mass violence. However, there is comparatively less discussion of the experiences of women as actors and perpetrators in conflict, and limited discussion of women as defendants in international criminal tribunals. This article explores this under-researched area. By analysing legal materials from the cases of six female defendants, this article investigates the extent to which legal discourses are shaped by stereotypes regarding femininity, conflict and peace. It (...) identifies three gender narratives—mothers, monsters and wives—used in relation to female defendants, which highlight the incompatibility of femininity with violence, and deny women’s agency in political and military contexts. Thus, this article concludes that female defendants in international criminal tribunals are viewed through gendered lenses, and discussed in accordance with gendered themes. This gendered justice is problematic, as it reinforces patriarchal gender stereotypes, and may hinder attempts to facilitate gender justice. (shrink)

RESUMEN: El presente artículo tiene por objetivo analizar desde una perspectiva feminista las similitudes y diferencias existentes entre los Tribunales Ad-hoc para Ruanda y la Antigua Yugoslavia relacionados con los crímenes relativos a violencia sexual y violación. Analizando los componentes que afectan la determinación de dichos crímenes como son el consentimiento y el contexto y su tipificación internacional: Genocidio y lesa humanidad. ABSTRACT: The present article aims to analyze from a feminist point of view the similarities and differences between the (...) Ad-hoc Tribunals for Rwanda and the former Yugoslavia related sexual violence and rape crimes. PALABRAS CLAVE: Ruanda, Ex-Yugoslavia, violencia sexual, lesa humanidad, genocidio, violación, consentimiento, contexto. KEYWORDS: Rwanda, Ex- Yugoslavia, sexual violence, crimes against humanity, genocide, rape, contentment, coercion, context. (shrink)

After more than a dozen years of activity, some 161 indictments, 64 arrests, and 47 surrenders, the International Criminal Tribunal for the former Yugoslavia (ICTY) has accomplished a good deal in terms of its primary task of prosecution. Nonetheless, there is still much debate over the state of transitional justice in the Balkans and what has been accomplished. We cannot forget that the ICTY was created with broad political and social purposes in mind, specifically to contribute to (...) the restoration and maintenance of peace. Using a comparative framework, we develop benchmarks of transitional justice outcomes to examine these vague but important and ambitious goals. Although conventional wisdom says that the ICTY is used instrumentally by Balkan leaders who are fundamentally opposed to the court’s existence, we demonstrate that there is also evidence of broader political and social change throughout the region. Thus, we contend that Balkan countries have indeed moved beyond mere prosecution. (shrink)

This paper analyses the role of remorse and apology in international criminal trials by juxtaposing two prominent cases of convicted war criminals Biljana Plavšić and Esad Landžo. Plavšić was the first and only Bosnian Serb political leader to plead guilty before the International Criminal Tribunal for the former Yugoslavia. Her acknowledgement of guilt and purported remorse expressed during her ICTY proceedings was celebrated as a milestone for both the ICTY and the Balkans. However, she later (...) retracted her remorse while serving her prison sentence. Landžo was a guard at the notorious Čelebići detention camp and did not acknowledge his guilt publicly during his ICTY trial. Seven years after his release from prison, Landžo personally confronted survivors and apologised to them. Through comparison of these two widely different cases, we illustrate varying roles criminal trials can play in offender’s reflection on his/her crimes and how relevance and resonance of war criminal’s remorse in and outside of the courtroom depend on how remorse is expressed and to whom. (shrink)

Increasingly, international governmental networks and organisations make it necessary to master the legal principles of other jurisdictions. Since the advent of international criminal tribunals this need has fully reached criminal law. A large part of their work is based on comparative research. The legal systems which contribute most to this systemic discussion are common law and civil law, sometimes called continental law. So far this dialogue appears to have been dominated by the former. While there are (...) many reasons for this, one stands out very clearly: Language. English has become the lingua franca of international legal research. The present book addresses this issue. Thomas Vormbaum is one of the foremost German legal historians and the book's original has become a cornerstone of research into the history of German criminal law beyond doctrinal expositions; it allows a look at the system's genesis, its ideological, political and cultural roots. In the field of comparative research, it is of the utmost importance to have an understanding of the law's provenance, in other words its historical DNA. (shrink)

Many scholars and activists have argued that the International Criminal Court holds potential for advancing the rights of women and girls, leading to extensive feminist engagement with and investment in the Court. As the ICC enters its second decade of existence, this article offers a reflection on both the possibilities and the challenges facing feminists. Can the international criminal law really offer a site for enhancing the rights of women? And if so, how? To explore these (...) questions I focus on the interaction between feminist activism and international criminal law institutions in relation to crimes of sexual and gender-based violence. I argue that some of the feminist strategies deployed to get sexual violence onto the international agenda have resulted in perverse outcomes. This should lead us to greater critical reflection regarding how international law conceives of sexual violence and direct our future engagements with international legal institutions. In particular feminist activists and scholars need to move away from focusing on the number of prosecutions towards challenging the international criminal law to characterise the nature of the harm in accordance with a recognition of sexual rights. (shrink)

Once commonly held, the claim that international prosecutions have a valuable role to play in transitional processes has in recent years come under attack. This attack has generally been grounded in the assertion that inter-national criminal prosecutions undermine reconciliation.I believe that the international criminal prosecutions in general and the International Criminal Court (ICC) in particular can play a meaningful role in sustaining peace and making transitional periods smoother and faster. However, the role the ICC (...) can play in the transitional processes is undermined by attempts to muddle the criminal process with reconciliatory and restorative aims . This muddling leads to problems not only in the way the ICC is understood and the way the Rome. (shrink)

When the International Criminal Tribunal for the Former Yugoslavia convicted the Bosnian Serb soldiers who used rape as a weapon of war of violating the human right to sexual self determination and of crimes against humanity, it transformed vulnerability from a mark of feminine weakness to a shared human condition. The court's judgment directs us to note the ways in which the exploitation of our bodied vulnerability is an assault on our dignity. It alerts us to the (...) ways in which the body of human rights law is a law of bodies; to the ways in which our desire for intimacy creates communal ties that ground our personal and social identities; to the ways in which the symbolic meanings of our bodies are integral to our sense of integrity and worth; and to the ways in which gender structures which position men as protectors of women make it possible for rape to be used as an effective and criminal weapon of war. (shrink)

This work delves into the nature of the morality of the judges and prosecutors of the ICC, who are instrumental in perpetuating the flawed concept of international criminal vacation. This work does not imply distrust in the capacities of the prosecutors or judges of the Court. However, if they are not morally and legally accountable for safeguarding the survival and security of the rights of victims, then who is? This volume places a significant emphasis on an ethical and (...) philosophical understanding of the system of international criminal justice and how the system of vacation for major criminals has become a mechanism against the universal rights of men across the globe. It is in these circumstances that we become instruments of political power, devoid of morality and humanity, driven solely by the evil greed of governments that disregard the dignity of other nations and relegate their victims to a state of insignificance. (shrink)

Legality, interdisciplinarity and the study of practice -- Re-thinkinking interdisciplinarity by re-reading hume -- Tainted love : the struggle over legality in international relations and international law -- The power of legality, legitimacy and the (im)possibility of interdisciplinary research -- Moving while standing still : law, politics and hard cases -- International law, Kelsen and the aberrant revolution : excavating the politics and practices of revolutionary legality in Rhodesia and beyond -- Juris dicere : custom as a (...) matrix, custom as a norm, and the role of judges and (their) ideology in custom making -- Multiple legalities and international criminal tribunals : juridical versus political legality -- Palestine's quest for statehood and the practice of the United Nations -- Regulatory legality : extraterritorial rule across domestic and international arenas -- Legality and lawfare in regime implementation -- Whose legality? Rule of law missions and the case of Kosovo -- Perspectives on the perils, promise, politics - and practice of interdisciplinarity. (shrink)

The relationship between power, law and consent is a key feature of the Western debate on criminal law. On the one side, defining the legitimate ways of exercising the punitive power has been a critical question since the Enlightenment thought onwards and especially as to the rule of law doctrine. On the other side, the role played by public punishment in shaping consent and its communicative potential have been crucial questions for critical, as well as non-critical approaches to (...) class='Hi'>criminal law in contemporary thought. These questions gain in strength and radicalism when it comes to international criminal law (ICL). In this case the filter of the state is not present anymore to mediate between power, law and consent, and the power to punish individuals is directly exercised by international institutions. This means, on the one hand, that traditional justifications of the power to punish and which are elaborated on in the domestic sphere are not useful anymore in legitimating international punishment. International criminal norms are not framed by an international democratically elected parliament, and their exercise is not controlled by the complex system of checks and balances typical of the rule of law. On the other hand, having not being created by a sovereign, international criminal law cannot be conceived as an instrument to build or consolidate consent around the sovereign. A double-sided dilemma therefore arises: traditional explanations are no longer apt to answer the question whether ICL is legitimate, while ICL itself can no longer be considered an instrument to build consent around the traditional power exercising it, namely the state. Although I consider both sides of the dilemma equally interesting and stimulating, I will focus here only on one side of the coin: the ability to build consent of the ICL institutions, and in particular the International Criminal Court (ICC). In other words, instead of asking whether the consent around the ICC is broad enough for the Court to be considered legitimate, I shall ask whether the ICC is able to build consent around the world order it embodies. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:January 25, 2012 (9:31 am) E:\CPBR\RUSSJOUR\TYPE3102\russell 31,2 064 red.wpd 1 See Russell’s exposure of this derogatory contraction of “Viet Nam Cong San” (“Vietnamese Communists”) in his War Crimes in Vietnam (London: Allen and Unwin, 1967), p. 45n. On the importance of language, cf. the legendary remark of Russell’s correspondent, Mohammad Ali: “I ain’t got no quarrel with them Viet Cong.… No Viet Cong ever called me nigger.” Russell attempted (...) to enlist Ali on behalf of the iwct (see the ra for their letters of 8 April, 18, 31 May, 11 Sept., 17 Oct., 15 Nov. and 16 Dec. 1967). russell: the Journal of Bertrand Russell Studies n.s. 31 (winter 2011–12): 167–87 The Bertrand Russell Research Centre, McMaster U. issn 0036-01631; online 1913-8032 ibliographies, rchival nventories, ndexes A SECONDARY BIBLIOGRAPHY OF THE INTERNATIONAL WAR CRIMES TRIBUNAL: LONDON, STOCKHOLM AND ROSKILDE Stefan Andersson [email protected] i.wintroduction T he International War Crimes Tribunal (iwct) on the United States’ warfare in Vietnam was founded in 1966 through the moral outrage of the British philosopher and political activist Bertrand Russell, his private secretary Ralph Schoenman, Ken Coates, Chris Farley and other people connected to the Bertrand Russell Peace Foundation and the Vietnam Solidarity Campaign. They wanted to inform the world about the us government’s attempts to convince the Vietnamese population (who were mainly peasants) that capitalism is a better political-economical system than communism, by killing as many “Vietcong”1 and unarmed seniors, women and children as possible with regular carpet bombing, cluster and phosphorus bombs, napalm, Agent Orange and other illegal weaponry, and oTering the survivors pleasant lodgingsinwired-inhamlets far away from their homes and the graves of their ancestors. This charm oTensive went on for more than ten years, and although three times as many bombs fell on Vietnam, Laos and Cambodia as were dropped during the whole Second World War, surprisingly enough the Vietnamese were not to be converted. In the 1960s this macabre spectacle could be watched on television all over the world, but very few protested against it. Until 1968 the majority of American January 25, 2012 (9:31 am) E:\CPBR\RUSSJOUR\TYPE3102\russell 31,2 064 red.wpd 168 stefan andersson 2 See Norman Mailer’s Armies of the Night: History as a Novel, the Novel as History (New York, New American Library, 1968). He met up with Noam Chomsky, “a slim sharp-featured man with an ascetic expression, and an air of gentle but absolute moral integrity” (p. 180). Both were arrested and spent a night in prison together. 3 See Kirkpatrick Sale, SDS (New York: Random House, 1973), p. 348. See also Natalie Atkin, “From Margin to Mainstream: American Peace Movements, 1950s– 1970s”, in issue “Peace Movements in Western Europe, Japan and the usa since 1945”, Mitteilungsblatt des Instituts für soziale Bewegungen, no. 32 (2004): 175–92. 4 See May 1970: Birth of the Antiwar University (New York: PathWnder P., 1971). 5 The so-called “Chicago conspiracy trials” or “Chicago 7 trials” that followed, when sevendefendants—AbbieHoTman,JerryRubin,DavidDellinger,TomHayden,Rennie Davis, John Froines and Lee Weiner—were charged with conspiracy and inciting to riot, showed that the us government was not going to tolerate such “unpatriotic” and “criminal ” behaviour. See James Tracy, Direct Action: Radical PaciWsm from the Union Eight to the Chicago Seven (Chicago: U. of Chicago P., 1996), pp. 145–51. 6 See Mark Kurlansky, 1968: the Year That Rocked the World (New York: Ballantine Books, 2004), and David Caute, 1968: the Year of the Barricades (London: Hamish Hamilton, 1988), pp. 3, 7–8, 12z–13. 7 Fredrik Logevall, “De Gaulle, Neutralization, and American Involvement in Vietnam, 1963–1964”, PaciWc Historical Review 61 (1992): 69–102. citizens were for the war, although some earlier, well-attended rallies against it, like the 1967 march on the Pentagon in late October,2 might have made some think diTerently. sds (Students for a Democratic Society)3 and other antiwar organizations never became the united force that could challenge the government ’s reliance on what Nixon called the “silent majority”. It was not until the us attacked Cambodia... (shrink)

This article argues in favor of holding leaders responsible for international crimes but also worries quite a bit about what would be a fair standard of mens rea for these leaders. Section 1 sets out the key facts of the case and the basis of the International Criminal Tribunal for Yugoslavia Trial Chamber's conviction of General Tihomir Blaskic. Section 2 presents the basis of the ICTY Appeals Court's overruling of the Trial Chamber's decision. Section 3 focuses (...) on the issue of mens rea concerning those who command others to commit such crimes as the taking of hostages and the use of human shields. Section 4 sets out a limited argument in favor of negligence as a type of mens rea in international criminal law. Finally, section 5 discusses the relevance of the idea of the theory of joint criminal liability in such cases. (shrink)

An international medical tribunal should be established with power to impose criminal sanctions against physicians who are guilty of crimes against humanity.

International Criminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of international criminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of international criminal law and the promotion of human rights and social justice; and of what comes after (...) class='Hi'>international criminal prosecutions, namely, punishment and reconciliation. International criminal law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor. (shrink)

In Complicity and the Rwandan Genocide ( 2010b ), Larry May argues that complicity can be the basis for criminal liability if two conditions are met: First, the person’s actions or inactions must contribute to the harm in question, and secondly, the person must know that his actions or inactions risk contributing to this harm. May also states that the threshold for guilt for criminal liability is higher than for moral responsibility. I agree with this latter claim, but (...) I think that it casts doubt on May’s account of criminal liability, particular in so-called performance cases in which low-level participants merely fail to help. This is because it is far from clear that passive non-helpers are morally responsible for their participation in widespread harms. Situationism purports to show that passive bystanders typically are not morally responsible for their role in such harms, because they were behaving reasonably subject to the constraints they faced. In this paper, I assess this claim, and defend it on the basis of O. W. Holmes’ standard of the reasonable person as a guide to judging criminal complicity. Finally, I provide a situationist account of the Rwandan genocide, which focuses on the systemic causes and primary perpetrators of the genocide, rather than low-level participants. (shrink)

Principle of equality of arms is part of fair trial concept, which encompasses several guarantees linked to the defence opportunities during the criminal procedure. The accused person is entitled to a fair trial. Balance of rights between the parties is bedrock for procedural fairness and the judge has to perform his competence in providing all necessary preconditions as for the trial to be fair. There are differences between interpretation and implementation of equality of arms in the jurisprudence of European (...) court on human rights and international criminal courts. Decisions of ECtHR are much more similar with domestic understanding of equality of arms as reasonable opportunity of the defence to present the case without disadvantages vis-à-vis the prosecutor, due to inherent inequity between the parties. When analyzing proceeding before the ad hoc Tribunals, there is “more liberal interpretation” of this principle, which allowed the Prosecutor to invoke equality of arms, as well. ICTY Trial Chamber in Aleksovski case concluded that application of the concept of a fair trial in favor of both parties is understandable because the Prosecution acts on behalf of and in the interests of the international community, including the interests of the victims of the offence charged and also has held that it is difficult to see how a trial could ever be considered to be fair where the accused is favored at the expense of the Prosecution. This interpretation has been justified with dependence of the international Tribunals on state cooperation and due to the fact that international criminal courts have no autonomous enforcement agencies at their disposal. Fortunately, ICC Statute considered equality of arms as solely afforded to the defence, or to the Prosecutor on the behalf of accused. (shrink)