International Criminal Law and the Ad Hoc Tribunal for Former Yugoslavia (original) (raw)
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Asian Journal of International Law, 2015
Japanese government had acted in self-defence. The ninth and final chapter explores the legacy of the Nürnberg and Tokyo tribunals, focusing on their influence over postwar attempts to define aggression, as well as noting the effect of the Cold War and the process of decolonization on such efforts. As a result of her rigorous collation of historical documents, Sellars adds to the existing literature by providing a detailed insight into the thought processes of the government officials, lawyers, and judges most closely involved in the Nürnberg and Tokyo tribunals. Of particular interest are their debates relating to the numerous practical and legal difficulties encountered, including the absence of sufficient physical evidence linking some of the defendants to the crimes committed (particularly in Japan). This impasse was circumvented at both tribunals through establishing conspiracy as an offence in itself, though the legal principle of collective liability was fraught with difficulties and derided by some as tantamount to an abuse of the defendants' human rights. Whether to include a separate charge of waging an aggressive war was also hotly contested between positivists and proponents of natural law, not least because no such offence existed in international law prior to the alleged offences being committed. Furthermore, many Allied officials were wary of the inclusion of this charge on the grounds that it would be difficult to define "aggression" in a way that would exclude their own actions in Norway, Finland, and Poland, inter alia. If anything can be said to be missing from this book, it is perhaps the explicit identification of the many evident parallels with modern attempts to advance international criminal law, particularly regarding its selective enforcement and politicized development. On the one hand, such similarities must be recognized and assimilated, if our goal is to achieve a consensus on how best to proceed; on the other hand, the author does not state this task as one of the book's aims, and so can hardly be criticized for its omission. Still, upon reading in the blurb that the significance of this book was linked to the attempts to introduce the crime of aggression at the International Criminal Court, this reviewer was hoping to learn more about this subject. Overall, Sellars elegantly illustrates the value of conducting empirical research with historical documentary evidence and, by implication, shows the necessity for this kind of information to be preserved, translated, and made available to researchers. Moreover, by showing the development and enforcement of international law to be an inherently social, political, and emotional endeavour, she implicitly demonstrates the need for further empirical study in order to elucidate the attitudes and motivations of the relevant practitioners and policy-makers. Of course, the question of how to prevent such atrocities remains unanswered, and ultimately the solution seems likely to involve moving beyond the use of criminal law in isolation (given its inherently reactive nature) and towards such concepts as community-based conflict resolution, peacebuilding, transformative justice, and sustainable security. Nonetheless, it ought to be possible for trials and trial-like processes to be used to elicit the truth, to hold offenders to account, and to obtain some form of redress for their victims, thereby justifying their empirical study by Sellars and other authors.
The International Criminal Tribunals for the Former Yugoslavia and Rwanda establish the beginning of a new pattern in the genuine international implementation of international criminal law and the move back to the international model inaugurated at Nuremberg. But even these tribunals were first and foremost, the by-products of international realpolitik. They were born out of a political desire to redeem the international community's conscience rather than the primary commitment of the international community to guarantee international justice. In the early stages, there was a persistent lack of political will by Member States to act, or to act with enough assertiveness with regard to the conflicts, notwithstanding the exposition of deliberate and systematic patterns of massive violations of human rights. The Yugoslav and Rwanda Tribunals were not established because of the United Nations, or the powerful States that control it. They were not established because of an intrinsic value on punishing war criminals or upholding the rule of law. Rather, the mobilisation of shame by non-governmental organisations and especially the grisly pictures beamed to the world by the television camera created a public relations nightmare and made liars of the centres of Western civilisation.
2016
Table of Contents 2.2.3 The triggering mechanisms of jurisdiction 2.2.4 The impact and progress of the Review Conference 2.3 The Normative and Policy Orientations Section Outline 2.3.1 The missing priorities 2.3.2 Human security and international law 2.3.3 Human security and world politics 2.4 The paradigm shift of global 'complementarity' Section Outline 2.4.1 The challenges in global regimes 2.4.2 The challenges in policy and law 2.5 The Political Impasse of Multilateralism Section Outline 2.5.1 Engaging in relationships and partnerships? 2.5.2 International governance institutions and the rule of law 2.5.3 International humanitarian policies, norms and principles 2.5.4 Conclusions 2.6 The paradigms in the making of human security Section Outline 2.6.1 National, regional and international approaches 2.6.2 The governance of international threats and crimes 2.6.3 The conceptualization of human security 2.6.4 The applicability of human security 2.6.5 The critics to the human security doctrine 3 The Governance of Peace and Justice as Tools of Human Security Preliminary remarks 3.1 Renewed responsibilities to respond to Mass Atrocity Crimes? Section outline 3.1.1 The ongoing debate 3.1.2 The rule of law advocates 3.1.3 The gaps of the globalist approach 3.1.4 The practice of delivering justice 3.2 The Prospects of Peace and Justice Section outline 3.2.1 The quest of civilian protection 3.2.2 Challenges 3.2.3 Obstacles 3.2.4 Matters of international mutual concern 3.2.5 The unresolved governance issues 3.3 Peace and Justice: The Lasting Debate Section outline 3.3.1 The centralization of individuals in global affairs IX Table of Contents 3.3.2 Accountability vs. conflict stabilization? 3.3.3 The international responses 3.3.4 The concept of global justice 3.4 The Governance of Peace and Justice Section outline 3.4.1 Governance of justice and world politics 3.4.2 Governance of justice and peace and security 3.4.3 Governance of justice and human rights 3.4.4 The rule of law and international cooperation 3.4.5 Political determinations and legal frameworks 3.5 An integrated approach of governance Section outline 3.5.1 The search of models of governance 3.5.2 The reformist approach 3.5.3 The principles 3.5.4 The requirements 3.5.5 The model of governance proposed 3.6 Concluding remarks Part II The Governance of Complementary Global Regimes: Challenges, Obstacles and Concerns 4 The challenges in the governance of complementary global regimes Preliminary remarks 4.1 The reach of 'universality' Section Outline 4.1.1 The limitations of civilian protection 4.1.2 The practice of humanitarian escalations 4.1.3 The first generation of referrals from the Security Council: Sudan and Libya 4.1.4 The international military engagement in Libya 4.1.5 The absence of civilian protection measures in Libya and Syria 4.2 The globalist approaches of governance systems Section Outline 4.2.1 The global concerns 4.2.2 The global responsibilities 4.2.3 The unresolved statehood issues 4.3 The transition of global security systems Section outline 4.3.1 What kind of civilian protection measures? 4.3.2 The politics of transition in conflict zones 4.3.3 Collective security and human security 4.3.4 The risks in the policy formulations 4.3.5 Protecting civilians
THE INTERNATIONAL CRIMINAL COURT IN WORLD POLITICS
The article discusses the importance of the International Criminal Court (ICC), a recently established intergovernmental organization to address the most heinous crimes. This organization is fi rst evaluated with respect to its impact on the notion of national sovereignty, upon which the international system has long been based. Then the contribution of global civil society in the creation of the ICC is outlined in order to demonstrate that the global order is gradually departing from being state-centric. And fi nally, the US opposition to the ICC is briefl y examined as that opposition is extremely relevant to the subject, given that the US is regarded as the sole superpower, which is supposed to have a determinative role in the conduct of global politics.
2019
Ever since the International Criminal Tribunal for former Yugoslavia handed down its final verdict in November 2017, there has been much speculation regarding the achievements and legacies left behind by the historic judicial institution. However, less attention has been given to the Tribunal's normative influence. By outlining three of the ICTY's normative legacies the study seeks to illuminate the Tribunal's unique normative capacity. The ICTY's role in the codification of the norm against wartime sexual violence is further analyzed to explore how international organizations such as the Tribunal can contribute to norm development and norm diffusion. Limits to normative influences are revealed, which put into question whether the Tribunal has actually left a lasting impact in the region that matters the most; Serbia and Bosnia and Herzegovina. Analyzing the Tribunal's normative capacity will shed light on the prospects and limits of mandates for future international judicial institutions.
Humanitarian organizations and international criminal tribunals, or trying to square the circle
International Review of the Red Cross, 2006
This article looks at the role of humanitarian organizations in the context of judicial procedures in a global environment which was modified by the establishment of international criminal courts. It shows the struggles and tensions that humanitarian organizations face when, on the one hand, they bring assistance and protection to victims of armed conflicts and other situations of violence and, on the other hand, they contribute to the fight against impunity in cases of grave violations of international humanitarian law. The author suggests some elements of an operational framework which should contribute to the achievement of these difficult-to-reconcile objectives.