Transitional justice is broadly understood to refer to formal efforts to deal with past wrongs in the midst of a transition from an extended period of conflict or repression to democracy. In this paper, I consider the role of international criminal trials in transitional justice. I argue that such trials may contribute to transitional justice, but such contributions are conditional on two main factors. The first factor is time. The second factor is what other transitional justice (...) responses are adopted domestically. (shrink)

I argue that international criminal trials can contribute to political reconciliation by fostering the social conditions required for law’s efficacy.

In A Moral Theory of Political Reconciliation, Colleen Murphy devotes a full chapter to arguing that international criminal trials make significant contributions to political reconciliation within post-conflict and transitional societies. While she is right to claim that these trials serve an important function, I take issue with her with respect to what that important function is. Whereas Murphy focuses on the contributions international criminal prosecutions might make to political reconciliation within the borders of transitional (...) societies, I claim instead that their primary function is to restore order at the international level and to dispense justice. The aims of justice are not always consistent with the aims of reconciliation. Moreover, several features of international criminal trials should give us pause with respect even to how well, in fact, they manage to serve the ends of international justice. (shrink)

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)

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, (...) we emphasize the communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice. (shrink)

Based on the examination of 49 Chinese criminal trials transcribed from the audio-visual recordings on the ‘China Court Trial Online’ website ( https://tingshen.court.gov.cn/ ), the institutional participants–prosecutors, defence lawyers, and judges–are found to frequently repeat defendants’ responses (‘other-repetition’), after a question–answer adjacency pair. Other-repetition has been described as a resource for showing participation and familiarity (Tannen 2007), initiating repair and registering receipt (Schegloff 1997), and displaying understanding and emotional stance (Svennevig 2004). However, other-repetition in trial discourse has not (...) been thoroughly researched. Therefore, this article aims to further examine this salient institutional linguistic feature in order to explore stance construction as a third turn. It is common to associate certain prosodic features of a repetition with the stance of the speaker. However, prosody may not be a reliable cue for stance interpretation in Chinese courtrooms, as institutional participants might conceal their stance during a repetition. Though they are more explicit in displaying their stance with turn-initial repeats, the distinction between the prosody of repeats for different functions is not categorical. It is found that defendants are sensitive to the lexicogrammar and multimodal cues for stance interpretation. (shrink)

The recent proposal by the Independent Expert Panel of the Stop Ecocide initiative to include the crime of ecocide in the International Criminal Court's Rome Statute has raised expectations for preventing and remedying severe environmental harm through international prosecution. As alluring as this image is, we argue that ecocide prosecutions may be the most difficult, perhaps even impossible, in precisely the cases that the ICC would need to be concerned with; namely, the gravest global incidents of environmental (...) harm, including those associated with planetary climate change. We explore a series of questions about the panel's formulation of ecocide that resonate with longer debates around criminalizing environmental harm but take on new dimensions amid the Anthropocene and after twenty years of ICC trials. Ecocide must contend with the hard lessons learned concerning the ICC's limitations in realizing justice in a fraught international political context and also with fundamental challenges to knowledge and legitimacy arising from the uncertainty and dynamic socioenvironmental context of the Anthropocene. The proposed amendment, if adopted, risks ineffective prosecutions or even perverse outcomes for the environment itself. This risk, however, may characterize any effort to prosecute ecocide internationally in the Anthropocene unless the terms of international criminal law are fundamentally rethought. (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)

In this article, I argue that we need a better understanding of the theoretical underpinnings of the current debates in international law surrounding hate speech and inchoate crimes. I construct a theoretical basis for speech acts as incitement to genocide, distinguishing these speech acts from speech as genocide and speech denying genocide by integrating international law with concepts drawn from speech act theory and moral philosophy. I use the case drawn on by many commentators in this area of (...) international criminal law, the trial of media executives for the roles they played in the Rwandan genocide through public speech acts by media entities insulting an ethnic group or advocating violence against an ethnic group. Each of these men were institutional leaders and were charged with using their positions within Rwandan society to distribute what I call genocidal hate speech, genocidal incitement speech, and genocidal participation speech. I argue for a distinction between these three types of speech, and a difference in individual criminal liability for the dissemination of each type of speech. I also argue that there should be a difference in individual criminal liability for speech acts within the context of an ongoing or recent genocide, and speech acts that can be separated from a site of mass violence. (shrink)

The International Criminal Court (ICC) is responsible for prosecuting individuals for heinous crimes that take place during civil and/or international armed conflicts, including sexual violence. Prosecuting this crime relies primarily on survivor accounts, but witnesses often fear the psychological effects of giving such testimony, particularly because there is a high risk of retraumatization, a stigma associated with victimhood, and a fear of victim-blaming. Thus, the Court’s Victims and Witness Unit (VWU) puts forth provisions for questioning vulnerable witnesses, (...) requiring, in part, that questioners avoid embarrassing or offending witnesses. Using a discourse analytic approach, this paper examines transcripts from three recent ICC cases dealing with wartime sexual violence—_Bemba, Ongwen_, and _Katanga and Chui—_exploring the discursive strategies employed by prosecutors and defense attorneys in these trials as they navigate arguing their cases before the judges while also tailoring their questions to adhere to the VWU’s provisions. I show that adhering to the provisions often involves relying on euphemistic expressions to discuss rape—which enter the trial discourse through linguistic formulations and reformulations—even though these expressions reflect the language used to discuss consensual sex and not sexual violence. Thus, this method of adhering to the provisions can undermine the prosecution’s case while helping the defense’s. (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)

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)

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)

This paper addresses the selective mechanisms by which criminal proceedings produce strong arguments. It does so by focusing on the failing of argument themes (topoi) in the course of criminal proceedings, rather than on their career. In a further step, the notion of failing is bound to learning: different forms of failing point at different ways and places of learning. The study is comparative, relating cases from four different legal regimes (England, USA, Italy and Germany) that are taken (...) from four extensive ethnographic studies in defense lawyer’s firms. We will track down the failures of topoi at three different stages (pre-trial, trial, and deliberation) in our different legal regimes. Failing occurs in all proceedings in various modes and at different stages. We argue that those modes as well as the different stages at which they occur point at the spots in the respective procedures that allow for learning about the inherent conceptions of “good reasons.”. (shrink)

An emerging consensus regards domestic amnesties for international crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law, and of the fledgling International Criminal Court , is to end impunity for violators of the worst of criminal acts. But the anti-impunity norm, and the anti-amnesty consensus that has arisen from it, now face serious difficulties. The ICC's role in the ongoing (...) conflict in Northern Uganda illustrates the deadlock that has now emerged between countries wishing to retain the power to use domestic politics and criminal law as tools for negotiation with current or outgoing perpetrators, on the one side, and the ICC's determination to apply a consistent international anti-impunity norm, on the other. The paper argues that the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice. A broader norm for democratic accountability, by contrast, would continue to prefer prosecutions over amnesties in international law, less for the opportunity for deserved retribution for perpetrators than for the public enactment of the deliberative procedures associated with the rule of law.Keywords: amnesty; impunity; international law; international criminal court. (shrink)

The novelties of the contemporary international order require a rethinking of the normative foundations of criminal justice. Although one can understand the relevance of basic principles such as th...

Drawing on Brown and Fraser’s (in: Giles, Scherer (eds) Social markers in speech, Cambridge University Press, Cambridge, pp 33–62, 1979) framework for the analysis of communicative situations and Fuentes Rodríguez’s (Lingüística pragmática y Análisis del discurso, Arco Libros, Madrid, 2000; in Estudios de Lingüística: Investigaciones lingüísticas en el siglo XXI, 2009. https://doi.org/10.14198/ELUA2009.Anexo3.04 ) model of pragmatic analysis, this paper examines three home-made recordings featuring some of the members of the terrorist cell responsible for the 2017 vehicle-ramming attacks in Barcelona and (...) Cambrils weighted as evidence during the trial held between November 2020 and May 2021 in the Spanish National High Court. The aim of this qualitative analysis is to test whether the linguistic evidence available supports the allegation that the participation in these recordings by one of the accused, Mohamed Houli Chemlal, had been planned by his interlocutors. Results show, first, that the exchanges analyzed present features indicative of both spontaneity and (limited) planification. Second, that Houli makes key contributions to the unfolding of the interactions shown in the recordings and that he does so in a cooperative and apparently relaxed manner, which could at best provide only partial support to his allegations. It is claimed that forensic linguistic analysis can generate valuable insights within terrorism-related legal proceedings. (shrink)

In this article, I contribute to the debate between two philosophical traditions—the Kantian and the Aristotelian—on the requirements of criminal responsibility and the grounds for excuse by taking this debate to a new context: international criminal law. After laying out broadly Kantian and Aristotelian conceptions of criminal responsibility, I defend a quasi-Aristotelian conception, which affords a central role to moral development, and especially to the development of moral perception, for international criminal law. I show (...) than an implication of this view is that persons who are substantially and non-culpably limited in their capacity for ordinary moral perception warrant an excuse for engaging in unlawful conduct. I identify a particular set of conditions that trigger this excuse, and then I systematically examine it as applied to the controversial case of former-child-soldier-turned leader of the Lord’s Resistance Army, Dominic Ongwen, who is currently at trial at the International Criminal Court. (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)

25 leading contemporary theorists of criminal law tackle a range of foundational issues about the proper aims and structure of the criminal law in a liberal democracy. The challenges facing criminal law are many. There are crises of over-criminalization and over-imprisonment; penal policy has become so politicized that it is difficult to find any clear consensus on what aims the criminal law can properly serve; governments seeking to protect their citizens in the face of a range (...) of perceived threats have pushed the outer limits of criminal law and blurred its boundaries. To think clearly about the future of criminal law, and its role in a liberal society, foundational questions about its proper scope, structure, and operations must be re-examined. What kinds of conduct should be criminalized? What are the principles of criminal responsibility? How should offences and defences be defined? The criminal process and the criminal trial need to be studied closely, and the purposes and modes of punishment should be scrutinized. Such a re-examination must draw on the resources of various disciplines-notably law, political and moral philosophy, criminology and history; it must examine both the inner logic of criminal law and its place in a larger legal and political structure; it must attend to the growing field of international criminal law, it must consider how the criminal law can respond to the challenges of a changing world.Topics covered in this volume include the question of criminalization and the proper scope of the criminal law; the grounds of criminal responsibility; the ways in which offences and defences should be defined; the criminal process and its values; criminal punishment; the relationship between international criminal law and domestic criminal law. Together, the essays provide a picture of the exciting state of criminal law theory today, and the basis for further research and debate in the coming years. (shrink)

In the transition from a repressive to a democratic society, the successor government faces the problem of how to deal with grave human rights violations such as killings and torture committed under its predecessor. This paper analyzes the dilemma a new government may encounter when it attempts to prosecute and punish those found responsible. On one hand, trials of chargeable officers may be able to prevent human rights abuses in the future and to facilitate instituting or restoring democracy. On (...) the other, in the case that there were no legal rules definitively prohibiting the abuses committed by these officers, the trials require ex post facto laws, which breach the principle of nulla poena sine lege, and more generally violate the rule of law. These retroactive laws not only break legal predictability but treat individuals unfairly. After identifying both the need for, and the legal and political losses incurred by such criminal trials, the author examines the claims that international law resolves the dilemma of retroactive justice or that prosecution is justified as a fulfillment of international obligation. Then the author refers to this dilemma as “dirty hands” to characterize a circumstance in which one cannot avoid using the wrong means to obtain the best ends. Such characterization has normative implications for three aspects of trials: the process of enacting retroactive laws and the process of conducting the trials; the choice of other possible legal remedies; and the principles related to reactions in the international community. (shrink)

The trial of major Nazi war criminals in Nuremberg was a landmark event in the development of modern international law, and continues to be highly influential in our understanding of international criminal law and post-conflict justice. This volume offers a unique collection of the most important essays written on the Trial, discussing the key legal, political, and philosophical questions raised by the Trial both at the time and in historical perspective. -/- The collection focuses on pieces from (...) those involved in the Tribunal, discussing the establishment of the Tribunal, the Trial itself, and the debate that followed the Judgment. Also included are representative essays of the academic debate that has surrounded Nuremberg in the sixty years since the Trial. Ranging from the contribution of Nuremberg to the substantive development of international criminal law to the philosophical evaluation of legalism in post-conflict international relations, the perspectives provided by the essays offer a unique overview of the persistent significance of Nuremberg across a range of academic disciplines. -/- The collection also features newly translated essays from key German, Russian, and French writers, available in English for the first time; a new essay by Guénaël Mettraux examining the Nuremberg legacy in contemporary international criminal justice; and an exhaustive bibliography of the literature on Nuremberg. (shrink)

This study contrasts the evidence exclusion principles within the adversarial legal system of the United States, particularly the “fruit of the poisonous tree” doctrine, with the inquisitorial system of Vietnam. The U.S. model, emphasizing the exclusion of unlawfully obtained evidence to protect the presumption of innocence and ensure fair trials, relies on the Fourth Amendment to prevent police misconduct. Conversely, Vietnam, with its focus on uncovering the truth, has started to adopt adversarial elements, including evidence exclusion, to align with (...) international standards and enhance human rights protections within its criminal justice system. The research examines the application of the “fruit of the poisonous tree” doctrine in the U.S. and its implications for Vietnamese legal reforms, especially the proposed amendments to Article 87 of Vietnam's Criminal Procedure Code. These reforms aim to exclude unlawfully obtained evidence while allowing for the use of evidence collected independently from illegal actions. Highlighting the need for a balanced approach that respects procedural rights and promotes justice, the study advocates for comprehensive legal reforms in Vietnam. It suggests amendments to refine evidence exclusion principles, ensuring they reflect both the Vietnamese context and the progressive features of U.S. criminal justice practices, thereby enhancing the fairness and integrity of criminal proceedings. (shrink)

The last decade has seen the centrality of the prison within Western systems of criminal justice confirmed. Despite arguments raised in favour of decarceration and alternatives to custody, prison populations in Western Europe and North America have generally continued to rise. The increased reliance on imprisonment has been demonstrated both by new programmes of prison building and by political commitment to the prison, particularly in the United Kingdom and the United States. This development raises more forcefully than ever the (...) question of the defensibility of prison. Does prison in fact have a defence as a major type of punishment and sanction in modern society? This is the core question approached in Prison on Trial. This international assessment takes stock of prison as a sanction and fully discusses the evidence and material which now exists concerning rehabilitation, general deterrence, incapacitation and individual deterrence and justice. Mathiesen concludes that prison finds no defence in any of them. Since prison is indefensible as it stands and is only maintained because of its ideological functions, the author promotes the ideal that prison will eventually be abolished. However a major reduction in the prison population can only be brought about by a shift in our thinking about imprisonment and justice in general. Thomas Mathiesen's arguments will be of interest not only to criminologists and others involved in the study and practice of the criminal justice system but also to the wider market within social and public policy. (shrink)

The international community has yet to develop a broadly accepted philosophical rationale for the extraterritorial adjudication of war crimes. Instead, several justifications exist in a state of tension that produces uncertainties in the applicable legal doctrines and policies. This article explains how the competition between the “atrocities” approach on the one hand, and the statist and humanitarian rationales on the other, causes instability in the regime. It advocates for increased attention to the philosophical grounding of extraterritorial war crimes (...) class='Hi'>trials, particularly in light of the increasing frequency of such trials before international courts as well as national courts exercising universal jurisdiction. (shrink)

This paper seeks to argue that although fair trial standards are commonly portrayed as a set of minimum coherent standards applicable across a range of different legal traditions, there is a tension between those standards that accentuate the importance of individual will and autonomy and those that emphasise the importance of accurate outcome through an effective defence. This tension has been managed for the most part by enabling individuals to be represented by legal counsel who present the defence on the (...) basis of their clients’ instructions. Human rights law has recognised the importance of legal assistance at trial and pre-trial stages of criminal procedures. Despite this certain developments in domestic and international criminal processes have led to a growing number of cases being decided without an effective defence being provided by legal counsel. Such cases have been disposed on the basis of defendants’ ‘consent’ and this supposed autonomy has held sway over any effective defence. The paper begins by tracing different dimensions of the fair trial standards and exposes a tension between the need for defendants to exercise autonomy over their case and the need for an effective defence. The paper then argues that the right to counsel has acted as a bridge between these two competing demands. Recent developments are then reviewed which have served to impede counsel from providing an effective defence in the interests of the client’s freedom to choose how her case should be handled. The examples examined are the growing number of cases that are pleaded or diverted out of court with no real examination of the strength of the prosecution case, the emergence of special advocates who do not take instructions from defendants and the increasing tendency for defendants to represent themselves in certain types of cases. The paper concludes by arguing that we need to make a sharper distinction between individual rights and procedural standards and argues for greater attention to be given to the latter on the design of criminal procedure. (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)

This paper explores spectatorial encounters with criminal trials. Particularly focusing on the 2018 work of Australian contemporary visual artist Julie Fragar that followed her watching murder trials in the Supreme Court of Queensland, it is argued that the artist as a legal outsider grapples with the inhumanity of the trial. This grappling can go in two directions. For some there is a need to bring the human back, to see the person beneath the mask of the role (...) that they are performing, to connect the gothic horror of the trial back to a redeeming humanism. For others, and this is evident in Fragar, the horror of the inhumanity is visceral and overpowering, and the grotesque masque of judgment needs to be witnessed. Both perform a corrective and critique to the business as usual of processing, judging and stamping onto human lives that is legal insider’s performance in the criminal trial. (shrink)

If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive (...) to the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations. (shrink)

The paper examines selected aspects of the defence closing argument in a highly publicised criminal trial to illustrate the orchestration of various semiotic resources in legal persuasion and to explain their role in the creation of meaning. The study demonstrates that closing arguments are multimodal performances whose persuasiveness results from the combination of modes (speech, image, video, gaze, gesture, posture, proxemics) which contextualise and strengthen one another, rather than language alone. Drawing on earlier research into multimodality, courtroom rhetoric and (...) proximity in disciplinary genres, the analysis centres on the ways in which the defence counsel controls the rhetorical features of his narrative and constructs himself and the audience as people with similar understandings and goals. The study specifically demonstrates how the counsel constructs the proximity of commitment, the proximity of membership and the proximity of experience. It explores such facets of proximity as: organisation, argument structure, credibility, stance and engagement, and identifies key rhetorical strategies used to achieve the intended communicative effect. The analysis clearly shows that the persuasiveness of the counsel’s performance depends on the synchronisation of a range of meaning-making resources, which, if used in isolation, would result in a much less engaging argument. (shrink)

Legal theorists have characterized physical evidence of brain dysfunction as a double-edged sword, wherein the very quality that reduces the defendant’s responsibility for his transgression could simultaneously increase motivations to punish him by virtue of his apparently increased dangerousness. However, empirical evidence of this pattern has been elusive, perhaps owing to a heavy reliance on singular measures that fail to distinguish between plural, often competing internal motivations for punishment. The present study employed a test of the theorized double-edge pattern using (...) a novel approach designed to separate such motivations. We asked a large sample of participants (N = 330) to render criminal sentencing judgments under varying conditions of the defendant’s mental health status (Healthy, Neurobiological Disorder, Psychological Disorder) and the disorder’s treatability (Treatable, Untreatable). As predicted, neurobiological evidence simultaneously elicited shorter prison sentences (i.e., mitigating) and longer terms of involuntary hospitalization (i.e., aggravating) than equivalent psychological evidence. However, these effects were not well explained by motivations to restore treatable defendants to health or to protect society from dangerous persons but instead by deontological motivations pertaining to the defendant’s level of deservingness and possible obligation to provide medical care. This is the first study of its kind to quantitatively demonstrate the paradoxical effect of neuroscientific trial evidence and raises implications for how such evidence is presented and evaluated. (shrink)

Since its 1980s coining by Richard Falk, the ‘Grotian Moment’ concept has garnered popularity in international law discourse, denoting a rapid, paradigm-shifting development in international law. This concept builds upon a prevalent recollection of two past events as such paradigm-shifts. The first is, obviously, the ‘original’ Grotian Moment, anointing Grotius as the Father of International Law, mainly for publishing, in 1625, his ground-breaking treatise, De Jure Belli ac Pacis, which is said to had brought about a momentous (...) paradigm-shift that gave rise to modern (statist and secular), or even the first-ever-effective, international law. The second event is the post-ww2 Nuremberg international trial. Presumably, from its mid-seventeenth-century birth to Nuremberg, international law was starkly statist, and so individuals had generally not been its subjects. This, among other things, meant that international criminal law (icl) was not acceptable. Nuremberg is, therefore, celebrated as the first-ever international criminal tribunal, as icl’s birthplace and even more generally as the turning-point in international law’s attitude towards the individual. Simply put, Nuremberg is considered the prototype of a modern Grotian Moment. However, this paper shows that neither 1625 nor 1945 were truly Grotian Moments (their significance notwithstanding) and present’s likely causes for those myths. The paper further reveals that these myths, as well as the current embrace of the ‘Grotian Moment’ concept, are all manifestations of a larger, understudied phenomenon: that internationalists, evermore obsessed with perceiving themselves as cutting-edge, too often satisfy that fix by erasing the past. (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)

The paper seeks to analyse how two domestic courts decided criminal trials under circumstances of emotional mobilisation and political stress. Decisions from Argentina after 1983 and Romania after Ceausescu’s dictatorship illustrate how citizens’ affects influence courts’ choices within penal cases. Both cases show how the judiciary had to enter a dialogue with resentful and indignant claims for redress. However, while the Argentinean court filtered emotions through the strainer of equal respect and thus pushed the cause of democratic justice (...) ahead, the Romanian case serves as a cautionary tale about how not to correct injustices through criminal law. These two cases provide us with important lessons about the obstacles, but also the opportunities associated with public emotions during periods of radical political transformation. (shrink)

This article addresses, from a Frankfurt School perspective on law identified with Franz Neumann and more recently Habermas, the attack upon the principles of war criminality formulated at the Nuremberg trials by the increasingly influential legal and political theory of Carl Schmitt. It also considers the contradictions within certain of the defence arguments that Schmitt himself resorted to when interrogated as a possible war crimes defendant at Nuremberg. The overall argument is that a distinctly internal, or “immanent”, form of (...) critique is required of Schmitt's position, in which its is found wanting even on its own terms. In principle, the application of this dialectical mode of critique can allow a genuine debate to emerge between those seeking to continue both the Schmittian and critical theory traditions, whilst safeguarding the latter from the dangers of formulating polemical interventions that are, in effect, counterproductive to their own intentions. (shrink)

This paper explores the Eichmann trial in its dimension as a living, powerful event, whose impact is defined and measured by the fact that it is "not the same for all." I examine this legal event from two perspectives: Hannah Arendt's and my own. I pledge my reading against Arendt's, in espousing the State's vision of the trial, but in interpreting the legal meaning of this vision us one that exceeds its own deliberateness and distinct from the State's ideology. I (...) use Nietzsche's terms to contrast "critical history" with "monumental history." Whereas the official State vision of the trial is, I propose, precisely one of "monumental history, " Arendt's vision offers a substitutive "critical history." I analyze, one against the other, what I call the monumental legal vision of the Eichmann trial and the critical vision offered by Arendt. Exploring thus the monumental versus the critical as two opposed but non-exclusive and, in fact, profoundly complementary perspectives, I examine, side by side, the Eichmann trials' monumental focus on the victims and Arendt's critical objections to this focus: her objections, I show, are based in a jurisprudential conservatism coexisting with a historiographical radicalism. The Eichmann trial, in my view, is on the contrary and diametrically, historiographically conservative, but jurisprudentially revolutionary. I argue that Arendt failed to see the way in which the trial in effect did not simply repeat the victim's story, but historically created it for the first time. I submit, in other words, that the Eichmann trial legally created a radically original and new event: not a rehearsal of a given story, but a groundbreaking narrative event that is itself historically and legally unprecedented. Examining the trial's transformation of victims into prosecution witnesses, I analyze the victim-oriented focus of the trial as s legal process of translation of private traumas into public ones and as a public scene of the recovery of language and legal subjecthood by victims who were formerly defined by the oppressor's language and who were, therefore, not just injured, but essentially robbed of a language in which to articulate their injury and name their victimization. I argue that the Eichmann trial expanded the space available for moral deliberation in creating a new legal language: the trial was the victim's trial only insofar as it was now the victims who, against all odds, were precisely writing their own history. To enable such a writing, the Eichmann trial had to enact not simply memory, but memory as change. It had to dramatize upon its legal stage before the audience nothing less than a conceptual revolution in the victim. And this, in fact, is what the trial did This historically unprecedented revolution in the victim that was operated in and by the Eichmann trial is, I suggest, the trial's major contribution not only to Jews, but to history, to law, to culture - to humanity at large. I further argue that as a singular legal event, the Eichmann trial calls for a rethinking - and sets in motion a transvaluation - of the structures and the values of conventional criminal law. I submit that the quintessence of the Eichmann trial is the acquisition of semantic authority by victims. It was the newly acquired semantic and historical authority of this revolutionary story that, for the first time, created what we know today as the Holocaust: a theme of international discussion and world conversation designating the experience of the victims and referring to the crime against the Jewish people independently from the political and military story of the Second World War. (shrink)

Just over seventy years ago, three trials took place in Nuremberg, Germany. At the time, they seemed a turning point in international relations—and, indeed, proved to be. The trials involved the prosecution of prominent members of the political, military, economic, and judicial leadership of Nazi Germany, those who planned, oversaw, or otherwise participated in the Holocaust and other large crimes. At the time, the Trials were widely condemned for using retroactive criminal statutes. The most famous (...) discussion is what became known as the Hart-Fuller Debate. This paper argues that Locke provides the best account of the lawfulness of the Trials—at least when compared to the accounts offered by Fuller, Hart, and Ronald Dworkin. (shrink)

A question opens up a space between self and other in the very act of expecting a response. As such, it can be a form of world-building. Posing a question might reveal what is or it might push interlocutors to revise what is. Levinas counsels us to question the first attitude toward questioning in order to open ourselves up to the second. Using questions and answers from a trial of a former child soldier at the International Criminal Court, (...) this paper explores the ethical ramifications of the choices we make when we pose and respond to questions. (shrink)

Various special investigative methods are more often applied nowadays; their use is unavoidably induced by today’s reality in combating organised crime in the spheres such as corruption, prostitution, drug trafficking, trafficking in persons, money counterfeit and etc. Therefore, special secret investigative methods are more often used and they are very effective in gathering evidence for the purpose of detecting and investigating very well-organised or latent crimes. Both the Convention on the Protection on Human Rights and Fundamental Freedoms itself, i.e. its (...) Article 6, and other international instruments, such as the Council of Europe’s Criminal Law Convention, the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and others, do not prohibit the use of special investigative methods, provided that their use does not violate human rights. The use of special investigative methods, such as undercover agents or other undercover investigative methods, cannot in itself infringe human rights and the right to a fair trial; however, its use must have clear limits and safeguards. The recent judgements of the European Court of Human Rights regarding the use of undercover agents confirm that the use of undercover agents in certain types of cases is often unavoidable and also very problematic, because the Court imposes on the member states of the Convention increasingly wider obligations. Partly this is determined by the fact that the current jurisprudence of the Court is still in the state of formation, therefore many questions are left unanswered. (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)

The lie detector test has long been treated with suspicion by the law. Recently, several authors have called this suspicion into question. They argue that the lie detector test may have considerable forensic benefits, particularly if we move past the classic, false-positive prone, autonomic nervous system-based (ANS-based) control question test, to the more reliable, brain-based, concealed information test. These authors typically rely on a “comparative advantage” argument to make their case. According to this argument, we should not be so suspicious (...) of lie detection evidence if it has comparative advantages over the epistemic methods currently utilised by the legal system. In this article, I add to this growing support by making a novel comparative advantage argument in favour of brain-based lie detection evidence. The argument focuses on the P300 concealed information test (P300 CIT), which has several unique properties, and on the effect it may have on pre-trial bargaining in criminal cases rather than in-court evidence. The thesis is that P300 CIT could allow for innocent defendants to credibly signal their innocence to investigators and prosecutors during pre-trial bargaining more effectively than current proposed methods for doing the same thing. I defend this argument from a number of objections, and suggest that it opens up an interesting avenue in the ongoing debate about the merits of this technology. Although the argument is presented with the criminal law in mind, it could form part of a more general cumulative case in favour of this technology. (shrink)

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)

This paper examines Judith Shklar’s Legalism in light of the paradox that emerges clearly from a law-based approach to international crises that ought to be evaluated on the basis of whether the judicial initiative—the cases examined are primarily drawn from ad hoc UN Security Council tribunals—promote, in Shklar’s words, “decent politics.” The question of whether this notion is exclusively related to liberalism, and whether it may run contrary to the role of defense counsel in such trials—deeply anchored in (...) the liberal tradition of the protection of individual liberty, and yet confronted to the politics of international criminal law and international relations, however theorized—is fundamental, as “decent politics” compete with the legalistic imperatives of the defense, and the liberal foundation of the legal systems from which UN trials have emerged. Legalism provides a theoretical thread to examine the emergence of international criminal trials as well as the relation between the universality of law and history and the politics of memory, which figure prominently as political phenomena in these trials, but which may run contrary to the liberalism inherent in the legalist form. (shrink)

Barton’s view in Getting Even: Revenge as a Form of Justice (Open Court Chicago, 19991 is that revenge -- in the form of victim participation in trial. sentencing, and punishment -- should have a large place in criminal justice. I argue that what he suggests in the way of reform has no essential relation with criminal justice.

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)