Editors' Introduction (Retrials: The New Histories of International Criminal Law) (original) (raw)
Annotated Leading Cases of International Criminal Tribunals - volume 41
This forty-first volume of annotated leading case law of international criminal tribunals contains decisions taken by the ICC in the year 2009. It provides the reader with the full text of the most important decisions, identical to the original version and including concurring, separate and dissenting opinions. Distinguished experts in the field of international criminal law have commented the decisions. An index is included. Contributors: Steven Becker, Menno Dolman, Cristina Fernandez-Pacheco Estrada, Håkan Friman, Lea Kulinowski, Sally Longworth, Alexandra Popov, Heather Stevenson, Marianna Tonellato and Adam Wolrich.
Doing Justice to History: Confronting the Past in International Criminal Courts, 2021
As communities struggle to make sense of mass atrocities, expectations have increasingly been placed on international criminal courts to render authoritative historical accounts of episodes of mass violence. Taking these expectations as its point of departure, this book seeks to understand international criminal courts through the prism of their historical function. The book critically examines how such courts confront the past by constructing historical narratives concerning both the culpability of the accused on trial and the broader mass atrocity contexts in which they are alleged to have participated. The book argues that international criminal courts are host to struggles for historical justice, discursive contests between different actors vying for judicial acknowledgement of their interpretations of the past. By examining these struggles within different institutional settings, the book uncovers the legitimating qualities of international criminal judgments. In particular, it illuminates what tends to be foregrounded and included within, as well as marginalised and excluded from, the narratives of international criminal courts in practice. What emerges from this account is a sense of the significance of thinking about the emancipatory limits and possibilities of international criminal courts in terms of the historical narratives that are constructed and contested within and beyond the courtroom.
Ralph Henham: Punishment and Process in International Criminal Trials
Asian Journal of Criminology, 2007
Ralph Henham's book makes a socio-legal and philosophical inquiry into the theory and practice of international sentencing, with a view to identifying factors that affect discretionary decision-making in international criminal trials. It employs a comparative contextual analysis of the international criminal trial process in order to understand 'how and why particular sentencing outcomes are produced' (p 11). The fact that the practice of the ad hoc tribunals and the foundational instrument of the International Criminal Court (ICC) lack clearly defined penal justifications makes the arguments advanced in Henham's book both helpful and timely for future attempts at defining such justifications. According to Henham, in the practice of ad hoc tribunals, retribution in large part characterizes international sentencing, claims of deterrence remain largely rhetorical, and rehabilitation is regarded as a secondary objective in sentencing. To that end, Henham stresses the need for the ICC to balance retributive and reconciliatory demands in its future work through the development of appropriate sentencing norms based on articulated purposes (pp 23-24). This book is divided into eight chapters, and concludes with suggestions on how the debates over punishment and penal philosophy, consistency and discretion, crime control and due process and access to justice in international sentencing may be resolved. It does a very good job of deconstructing some of the rhetoric associated with international sentencing. It reveals that sentencing by ad hoc tribunals is guided by retributive goals despite the explicit acknowledgement of the need for restorative ideals for the promotion of peace and reconciliation in post-conflict societies. The book advances the argument that discretionary sentencing, which already characterizes the work of ad hoc international criminal tribunals, could be used to promote such agendas. Thus, in the end, the sentence ought to be 'socially responsive, morally sensitive and culturally relevant' (p 209). Specifically, there is a need in the future for provision of: (1) a statement of principles or purposes for sentencing; (2) mechanisms that provide guidance and ensure consistency through the development of a principled sentencing jurisprudence; (3) additional safeguards against bureaucratic and managerial agendas that compromise due process; (4) the development of due process norms that adequately address victim's concerns; (5) the de
After the Honeymoon: Reflections on the Current State of International Criminal Justice
Journal of International Criminal Justice, 2013
At the turn of the millennium, international criminal justice (ICJ) was in its honeymoon; today it seems that the honeymoon is over.What comes after the honeymoon? By now we have learned that ICJ cannot bypass politics and become an ordinary part of the rule of law. But normality was never a realistic aim for ICJ, which aims at the world's most abnormal crimes. The most important goal of ICJ is a radical one: transforming the world's political imagination to de-sanctify violence committed in the name of state or group, so that it comes to be regarded as mere crime. By this measure, the most important achievement of ICJ is positive complementarity, and the most reactionary is further strengthening of the doctrine of state immunity.
International Journal of Transitional Justice, 2018
Within the field of international criminal justice, opinion remains divided concerning the extent to which international criminal courts should be expected to write history. Taking this debate as its point of departure, this article argues that contestation over the historical function of international criminal courts hinges on the underlying conception of justice – adjudicative or sociopolitical – to which scholars and practitioners adhere in practice. The article demonstrates how these rival conceptions of justice function less as static positions and more as lines of argumentation that can be deployed to support or critique the range of practices that shape the historical narratives constructed within international criminal courts in practice. The article concludes by identifying a potential avenue to advance the conversation on the historical function – one that would assist in articulating what should legitimately be expected of international criminal courts and enable their practices to be evaluated in a more textured manner.
The Nuremberg Trials: International Criminal Law Since 1945 / Die Nürnberger Prozesse: Völkerstrafrecht seit 1945, 2006
At the outset, let me express the hope that my German countrymen will not take it unkindly, if I hold my presentation in English. 1 It is a sign of respect and sympathy acknowledging the many distinguished participants from abroad especially the American guests, co-organizers, and Touro College. I would like to express my personal appreciation that Touro-College under the farsighted leadership of its distinguished President, Dr. Bemhard Lander, is making such an important contribution in seeking a better understanding between Jews and a 'New Germany.' As I am still moved by Justice Bach's (Israel) impressive speech this morning, may I take the liberty in mentioning that in the course of my career, I have devoted more than ten years of my work to promote German-Israeli relations and German-U.S. Jewish relations in Tel Aviv, Washington D.C. and in my own country. On Sunday evening as we heard a gripping and mesmerizing keynote address by Whitney Harris, we jointly witnessed a very special return to Courtroom 600. In a much more modest sense, it was also for me a return to Courtroom 600. Why? Well, shortly after taking up my work as a full-time judge at the International Criminal Court in The Hague, I had the opportunity to speak on 21 October 2003 in the very same Courtroom 600 about the International Criminal Court, a conference organized by its distinguished Director, Prof. William Sheldon of the German-American Institute in Nuremberg. The title which I gave to my lecture may be of interest to you. I had thought about it quite a while. In the end, I concluded that the title should be: "The International Criminal Court-The Legacy of Nuremberg." 2 The title mirrors an obvious truth. Members of the German delegation, which were together with me at the Rome Conference,-among them Claus Kress, who spoke this morning and Andreas Zimmermann, whom we will hear this afternoon-are all aware of this: Without the International Military Tribunal of Nuremberg, there would be no International Criminal Court. I am, therefore, very pleased to have been invited to make a presentation at this important conference. I am touched especially by the presence of two American friends, former Nuremberg Prosecutors, Messrs Whitney Harris 3 and Benjamin Ferencz 4. Those who know the story of the Rome Conference will also know that both of them were, time and again, a source of encouragement and inspiration to the German delegation-you might even say that sometimes they acted as informal advisers to my delegation. Benjamin Ferencz advised us primarily on issues related to the crime of aggression 5-and jointly we somehow managed in getting at least the crime of aggression recognized as an international crime of major concern to the whole world as referred to Art. 5 of the Rome Statutes. Having Whitney Harris on your side was an invaluable source of encouragement to the German delegation not to resign, not to give up in our quest for a credible International Criminal Court. In my remarks I will deal with three questions:-What are some noteworthy key features of the ICC?-What are current tasks and challenges?-Where does the Court stand today? 1 For editing purposes the original oral presentation given on 19 July 2005 has been generally maintained throughout the text.
Trial in International Criminal Jurisdictions: Battle or Scrutiny
Eur. J. Crime Crim. L. & Crim. Just., 1998
After having read some articles on international criminal proceedings one can form an opi nion that the drafters of these proceedings have preferred adversarial common-law systems to civil-law inquisitorial systems. 3 It is true that the International Criminal Tribunal for the For mer Yugoslavia (ICTY) borrowed some principles of proceedings from common-law juris dictions. However, the reason for a borrowing was by no means the superiority of these systems. The motive was rather prosaic. The authors of An Insider's Guide to the Interna
Punishment, Legality, and Other Challenges of International Criminal Law
International Criminal Law Review
Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.