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The 1990s saw a systemic shift from the liberal post–World War II international order of liberal multilateralism (LIO I) to a post–Cold War international order of postnational liberalism (LIO II). LIO II has not been only rule-based but has openly pursued a liberal social purpose with a significant amount of authority beyond the nation-state. While postnational liberal institutions helped increase overall well-being globally, they were criticized for using double standards and institutionalizing state inequality. We argue that these institutional features of the postnational LIO II led to legitimation problems, which explain both the current wave of contestations and the strategies chosen by different contestants. We develop our argument first by mapping the growing liberal intrusiveness of international institutions. Second, we demonstrate the increased level and variety of contestations in international security and international refugee law. We show that increased liberal intrusiveness has led to a variety of contestation strategies, the choice of which is affected by the preference of a contestant regarding postnational liberalism and its power within the contested institution.
Africa has agency and can influence international politics. This chapter iterate some parts of the history laid out in previous chapters, emphasizing that Africa does not look back to a history of marginalization but one of participation. It turns to African actors and describes them before going through some policy arenas – the negotiations to reform the UN Security Council, the Libyan crisis, the International Criminal Court, climate change negotiations, and the Chagos Islands – to identify means of African actors to influence international politics and the obstacles they face.
International law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.
This chapter discusses international criminal law (fighting political crimes) and transboundary police cooperation (fighting common crimes), though mechanisms such as the ICC, but also extradition and abduction
To date, analyses of gender justice at the International Criminal Court (ICC) have focused primarily on critiques of, and shifts within, the Office of the Prosecutor. This article takes a different approach by focusing on the ICC’s judiciary. We being by arguing that state parties can and should do more than electing a balance of male and female judges – they can also ensure gender-sensitivity on the Bench by supporting candidates with expertise in gender analysis, and by backing judges who bring a feminist approach to their work once elected. Next, we explain the concept of the ‘feminist judgment-writing’ and suggest that this method offers a useful framework for embedding gender-sensitive judging at the ICC. To illustrate this argument, we highlight opportunities for ICC judges to engage in gender-sensitive judging in relation to interpreting the law, making findings of fact, and deciding procedural questions. The final section of the article discusses how best to institutionalize the practice of gender-sensitive judging at the ICC.
This chapter explores philosophical contributions to international criminal law, focusing in particular on analyses of the concept of a crime against humanity and the justifiability of universal jurisdiction over those who commit such a crime. In what sense, if any, are crimes against humanity wrongs done to “humanity?” Does the label "crime against humanity" refer to a distinctive wrong committed by those who perform such acts? If not, what distinguishes crimes against humanity from other types of crime? The first half of this chapter critically examines several competing accounts of the concept of a crime against humanity and the answers they provide to these questions. The remainder of the chapter considers two approaches to justifying the international prosecution of crimes against humanity. The first grounds it in the dangers that such crimes pose to all human beings, while the second appeals to an (emerging) moral or political global community that makes perpetrators of crimes against humanity answerable to courts that act on behalf of all humanity.
Heritage Justice explores how far past wrongs can be remedied through compensatory mechanisms involving material culture. The Element goes beyond a critique of global heritage brokers such as UNESCO, the ICC and museums as redundant, Eurocentric and elitist to explore why these institutions have become the focus for debates about global heritage justice. Three broad modes of compensatory mechanisms are identified: recognition, economic reparation and return. Arguing against Jenkins (2016) that museums should not be the site for difficult conversations about the past, Heritage Justice proposes that it is exactly the space around objects and sites created by museums and global institutions that allows for conversations about future dignity. The challenge for cultural practitioners is to broaden out ideas of material identity beyond source communities, private property and economic value to encompass dynamic global shifts in mobility and connectivity.
The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.
This chapter summarizes developments in international human rights law, mechanisms, and policies since the Universal Declaration of Human Rights was adopted. We first describe the nine core human rights treaties, including the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which together converted the Declaration’s ideals into international law, and the seven conventions with the goals of eliminating racial discrimination, discrimination against women, torture, and enforced disappearances, and protecting the rights of children, migrant workers, and their families, as well as persons with disabilities. We follow with summaries of the Genocide Convention and of the UN declarations proclaiming the rights of indigenous peoples and LGBTI individuals. We next describe the UN mechanisms for advancing human rights, including the High Commissioner for Human Rights, Human Rights Council, and International Criminal Court. These are followed by summaries of UN policies for protecting persons from governmental abuses, ending the world’s worst poverty and suffering, and providing human rights guides for businesses. We then summarize developments in international humanitarian law (the laws of war) and conclude with a brief overview of the five regional human rights systems.
What is the role of rhetoric and argumentation in international relations? Some argue that it is little more than ‘cheap talk’, while others say that it may play a role in persuasion or coordination. However, why states deploy certain arguments, and why these arguments succeed or fail, is less well understood. I argue that, in international negotiations, certain types of legal frames are particularly useful for creating winning arguments. When a state bases its arguments on constitutive legal claims, opponents are more likely to become trapped by the law: unable to develop sustainable rebuttals or advance their preferred policy. To evaluate this theory, I apply qualitative discourse analysis to the US arguments on the crime of aggression at the Kampala Review Conference of the International Criminal Court – where the US advanced numerous arguments intended to reshape the crime to align with US interests. The analysis supports the theoretical propositions – arguments framed on codified legal grounds had greater success, while arguments framed on more political grounds were less sustainable, failing to achieve the desired outcomes. These findings further develop our understanding of the use of international law in rhetoric, argumentation, and negotiation.
International liability and international criminal law are presented as alternatives to the law of state responsibility. Both regimes have developed out of real-life incidents to which state responsibility has not offered a sufficient enough solution. With their respective focus on adequate compensation and the desire to penalize perpetrators for the most serious violations of international law, they represent qualitatively different approaches to state responsibility. A more limited test of functionality is conducted in order to analyze whether the practical utility of these two regimes is higher than concerning the law of state responsibility. Three criteria that are crucial to a well-functioning and practical responsibility regime are explored: social control, collectivity, and signalling effect. The thematic evaluation of the two responsibility regimes shows that in some respects these particularized regimes fare better than state responsibility while also suffering from problems internal to their particular regimes. The core of the matter is that both regimes have their own rationale from which they do not purport to slide.
Henri Donnedieu de Vabres is a fascinating but cryptic figure within the circles associated with international criminal justice in the interwar period. One of the most active participants in the 1920s ebullience around international criminal law as President of the AIDP and member of the ILA, he eventually became the French judge at Nuremberg as well as a member of the ILC and the drafting committee for the genocide convention. For all that model trajectory, Donnedieu de Vabres had a unique and somewhat iconoclastic view of the fundamental purpose of international criminal justice. His first intellectual love was for private international law and throughout his career he saw international criminal law as fundamentally a conflict of laws issue, as a result of the worldwide movement of criminals. His view of an international criminal court was very much aligned with the AIDP’s early suggestion that it should be a criminal chamber of the PCIJ to adjudicate disputes between states over the exercise of criminal jurisdiction. He was an odd fit for the Nuremberg tribunal, where he was mostly silent but took a strong and surprising line during deliberations. He remains a neglected but pivotal figure in the early development of international criminal justice.
Vespasian V. Pella was Romanian jurist who dedicated his life to creating a system of international justice that would prevent war, punish atrocity, and vindicate humanity’s political and economic rights, objectives that he considered connected and indivisible. This chapter traces the origins of this project to Pella’s early commitment to republican, socialist, and internationalist ideals, a deeply personal interest in the psychology of individuals and crowds, and, especially, his reaction to the atrocities of World War I. War was what prompted Pella to campaign for the “international criminal law of the future,” a novel approach that combined the protection of social rights, the unification of domestic criminal law, and international and domestic criminal responsibility for states and individuals, with international institutions capable of playing a subsidiary role in resolving disputes, imposing sanctions, and punishing aggression and violations of the laws of war. Although Pella was successful in mobilizing professional support for his ideas, the political support necessary to bring his system to life never materialized. The chapter overturns many misconceptions surrounding Pella and is the most thorough study to date of his life and work
From Yemen to Rwanda, Sierra Leone to Cambodia, it has often been claimed that those who supply the weapons that are used to commit genocide, war crimes, and crimes against humanity play a role in bringing about those crimes. An arms trader who knowingly fuels atrocity may be considered morally reprehensible, but is he or she criminally responsible? Modes of accomplice liability in international criminal law prohibit the conduct of individuals involved in the arms trade who assist in the commission of international crimes. However, international criminal tribunals have heard only a small number of cases involving commercial arms transfers. This Chapter examines how the ICC could fit into the existing regulatory landscape of arms transfer conduct in the future, in particular through its mandate to enforce the mode of liability in Article 25(3)(d)(ii) of the Rome Statute.
This chapter critically examines the development of the fine and asset forfeiture measures in both the constituent instruments and case law of international(ised) criminal tribunals since Nuremberg. The chapter demonstrates that such procedures have been underutilised in practice, even though many perpetrators of international crimes were, in fact, solvent. While recognising that the origins of international criminal law were chiefly retributive, in light of the fine and asset forfeiture regimes found in the frameworks of a number of international(ised) criminal tribunals, the chapter contends that the Court's fine and asset forfeiture powers were intended by its founders to constitute a vital part of its reparative mandate. The chapter concludes that fine and asset forfeiture powers cannot be viewed as outer limits of international criminal justice, but must rather be seen as foundational to this project.
The human trafficking of civilian populations often arises as a consequence of armed conflict. It is during conflict when vulnerable populations are at risk of exploitation by traffickers, no more so than women and girls sold into sexual servitude. Trafficking not only occurs as a means for perpetrators to profit from war, but as an instrument to wage war. This chapter first provides a survey of existing sources of international humanitarian law (IHL) and international criminal law (ICL) to identify correlates between these norms and the internationally accepted definition of trafficking in persons. It then considers the scope to prosecute trafficking in persons as a crime against humanity under Article 7 of the Rome Statute establishing the International Criminal Court (ICC). A focus on this provision is warranted given that it is the first in the history of ICL/IHL to explicitly acknowledge that ‘trafficking in persons’ can give rise to international responsibility. Finally, the chapter considers some of the common obstacles to securing prosecutions that arise both domestically and internationally, with particular reference to the ICC.
Under current international law, victims of armed conflict have a right to reparation from the responsible parties. Political obstacles may, however, prevent victims from bringing reparation claims before domestic courts. For example, if the victims assert reparation claims before the court of a responsible party, they may reasonably fear discrimination if they were targeted in the armed conflict on ethnic, racial or religious grounds. They may also face real and significant legal and procedural obstacles at the domestic level, in the form of jurisdictional uncertainties, immunities, statutes of limitations, lack of sufficient evidence, or the absence of class or group actions. Giving effect to the right to reparation may in such cases only be practicable in an ad hoc mechanism of some sort. In fact, various precedents for such reparation mechanisms exist. Although reparation mechanisms may take many different forms, most need to address such common issues as who is eligible for reparation; what type of harm will be addressed; and what type of remedies are to be made available. The present chapter examines the common and basic principles which can be extracted by the comparative analysis of past and ongoing fifteen mechanisms.
International law resides at the confluence of law and politics and though it is guided by judicial judgement, it is particularly sensitive to political whim. Perceived economic interests are key to understanding the political motivations in international decision-making. In the UN model under of the Charter, international criminal law, and more specifically target selection for international criminal prosecutions, has been prejudicially skewed by economic/trade considerations. This chapter argues that target selection by the UN Security Council has historically been latently vetted according to economic considerations, inter alia, in a way that is unjust, and counter-productive to deterrence-based rationales. It further argues that the International Criminal Court, as a treaty-based body, is comparatively immune to most economic influences, at least by degree, and represents a positive evolution in the unbiased dispensation of international criminal justice. In support of this hypothesis this chapter reviews the target selection of UN based prosecutions (ad hoc and hybrid) and compares them to other grave situations not chosen for prosecution to conclude the determinative economic basis of target selection. It further iterates a comparison to ICC prosecutions where the independent court has initiated prosecutions in situations where the UN dared not to tread.
Legal controversies and disagreements have arisen about the timing and duration of numerous contemporary armed conflicts, not least regarding how to discern precisely when those conflicts began and when they ended (if indeed they have ended). The existence of several long-running conflicts – some stretching across decades – and the corresponding suffering that they entail accentuate the stakes of these debates. To help shed light on some select aspects of the duration of contemporary wars, this article analyzes two sets of legal issues: first, the notion of “protracted armed conflict” as formulated in a war-crimes-related provision of the Rome Statute of the International Criminal Court, and second, the rules, principles and standards laid down in international humanitarian law and international criminal law pertaining to when armed conflicts have come to an end. The upshot of the analysis is that under existing international law, there is no general category of “protracted armed conflict”; that the question of whether to pursue such a category raises numerous challenges; and that several dimensions of the law concerning the end of armed conflict are unsettled.
This chapter considers how the global dimensions of crime and deviance have impacted on criminological thinking, and the challenges they present for crime control at all levels. Traditional perspectives of crime, deviance and control have developed within the context of single jurisdictions and national sovereignty, focusing on domestic rather than transnational crime and international criminal justice. However, the impact of globalisation has challenged these perspectives and national systems as the collapse of spatial and temporal boundaries produces a growing complexity of interconnectedness. Global flows of trade and people, together with the ubiquitous impact of the internet and other digital technologies, not only provide opportunities for economic and social wellbeing, but also create new threats and challenges as criminal interconnectivities emerge alongside legal ones. These manifest in various ways, and include terrorist activities, organised crime and people trafficking, each flourishing in an environment of ‘transparent’ borders and anonymous virtual spaces, continually testing the adequacy of orthodox understandings and national systems of crime and its control.