The Sensibility and Sense of International Criminal Law (original) (raw)
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Justifying International Criminal Punishment: A Critical Perspective
M. Bergsmo and E.J. Buis (eds), Philosophical Foundations of International Criminal Law: Foundational Concepts, 2019
This chapter critically examines the principal theories that have been advanced to justify the imposition of incarcerative punishment on individuals convicted of participating in the commission of international crimes and offers some initial reflections on how post-conflict justice might be reimagined without incarcerative punishment at its core. Adopting a critical perspective, the chapter begins by unveiling and questioning the assumptions that underlie the dominant justificatory theories of international criminal punishment – namely, retributivism, utilitarianism, and expressivism. By probing these assumptions, the chapter reveals how incarcerative punishment for international crimes may be inappropriate in certain contexts. To raise this prospect is not to imply that it is appropriate to ignore the commission of international crimes, but rather to argue in favour of an openness to pluralise how local and international communities respond to mass atrocity situations in practice. In this spirit, the chapter examines two alternative visions of post-conflict justice, which would mark a shift away from the model of incarcerative punishment that currently dominates the field. One alternative vision would be reformist in nature, retaining the core tenets of international criminal justice in its present form, but relying on non-incarcerative measures to communicate and redress the wrongfulness of an individual’s acts and omissions. A more radical vision for post-conflict justice would entail a more fundamental shift away from criminal justice towards political and social justice. The underlying ambition of the chapter is to demonstrate that the choices facing post-conflict societies are not binary – namely, either to implement the received wisdom of incarcerative punishment, on the one hand, or the vacuum of impunity, on the other. Rather, it is possible to imagine a more plural set of visions of post-conflict justice, stretching far beyond the imposition of incarceration to include diverse conceptions of criminal, political and social justice.
THE DILEMMA OF INTERNATIONAL CRIMINAL JUSTICE
International Progress Organization -- I.P.O. Online Papers, 2023
Independence of the judiciary, secured by a separation of powers, is an indispensable criterion for the rule of law. In any state system (domestically), this requires an elaborate mechanism of checks and balances between the branches of government. Specifically, “independence” rests in the judiciary’s not being bound by political instructions, but solely by the norms of the democratically created law (within the bounds of the Constitution), and in the ability (i.e. authority) to enforce its decisions via the executive branch in a subsidiary role. Only such an arrangement can ensure the exercise of judicial authority in a consistent manner. Equality before the law, as basic principle, cannot be guaranteed in any other setting. The above conditions – indispensable for the rule of law – are absent outside the normative framework of the sovereign state. Internationally, in the largely anarchic space between states, there simply is no separation of powers. There may exist a balance of power among a multitude of sovereign actors, holding each other in check. Judicial authority that stretches beyond state borders is alien to such a system. If it is asserted nonetheless, its exercise, legally dubious in itself, risks being arbitrary and politicized. This has been the case with virtually all arrangements of international criminal justice since the Second World War, such as: o the “unilateral” projection of sovereignty in cases where a state claims “universal jurisdiction” (measures that have the potential to trigger conflicts with other states); o the “collective” projection of power by states that establish a court either as victors after armed conflict or as members of the United Nations Security Council (in violation of Article 14[1] of the International Covenant on Civil and Political Rights); o the International Criminal Court, established by intergovernmental treaty, where limited membership (in particular regarding the absence of great powers) is in contrast to the quasi-universal prosecutorial mission of the Court (potentially also over officials from non-state parties, as far as territorial jurisdiction is concerned, in contravention, as some states argue, to the Vienna Convention on the Law of Treaties). The dilemma of international criminal justice consists in an irreconcilable contradiction at the roots of these projections of judicial power, namely a conflict between national sovereignty and supranational authority (which is situated totally outside a framework of checks and balances). This antagonism has opened the door for the politicization of the judicial function. As regards legal consistency and moral legitimacy, but also mere effectiveness, the problems are similar to those of today’s humanitarian intervention. In the absence of a world state, both risk becoming pawns of global power politics.
Published in: European Journal of Crime, Criminal Law and Criminal Justice, Vol. 22, Issue 3, 2014, pp. 249-279, 2014
The main objective of this article is to put forward a critical analysis of the emergent international criminal justice system, epitomized by the creation of the permanent International Criminal Court. Such an endeavour is warranted on the assertion that international criminal justice scholarship has entered into a ‘reflective’ phase, the hallmark of which lies in the re-evaluation of the institutions of international criminal law in the light of the distinctive traits of international criminality derived from the combination of the criminological theory of state crime and the rising theory of international crime in the domain of international criminal law. In this context, the article summarizes the basic points and the epistemological premises of the criminological theory of state crime, while seeks to delimit the subject matter by alluding to the concept of core international crimes arising from the normative system of the ICC. The core aim of such a combined approach is not to downplay the existing differences between the criminological concept of state crime and the penal concept of core international crimes, but to highlight common points in order to draw tentative conclusions and make some preliminary suggestions from a criminal policy perspective.
2009
This article seeks to illustrate how the Principles of Distinction and Proportionality, coming from a branch of primary rules (International Humanitarian Law) have a relevant influence on the modern system of international criminal responsibility, consecrated in the Statute of the International Criminal Court, ICC. It is found that even if the latter contains provisions -war crimes- reproaching conducts due to their indiscriminate character, there are gaps related with the meaning and extension of such criminal conducts; this problematic is explained on one hand, by the political reluctance of States to compromise their sovereignty, and the specificities of the punitive function on the other. Practical consequences can be seen on the way on which modern armed conflicts take place, as most of them take place in a non-international level. Despite of a pessimist diagnosis, it has to be firmly pointed that the sole fact that a permanent criminal court has came to be a reality is a treme...
2009
If an international court were to be set up, it would be unwise to give it the very wide power to determine the penalty to be applied to each crime.-Mr. Carlos Salamanca Figueroa, International Law Commission (1954) Only the innocent deserve the benefits of the principle of legality. This assertion naturally offends our notions ofjustice. It would be unacceptable for a legal system to institutionalize such an approach. Yet, in the context of prosecuting mass atrocities, genocide, crimes against humanity, and war crimes, international criminal justice mechanisms appear to be resigned to such a principle, if not openly embracing it. Although ranking among the most fundamental principles of criminal law, nulla poena sine lege (no punishment without law) receives surprisingly little attention in international criminal justice. Indeed, it may be considered the "poor cousin" of nullum crimen sine lege (no crime without law), which has attracted far greater consideration. Whereas nullum crimen addresses the punishability of the conduct in question, nulla poena deals with the legality of the actual punishment or penalty itself Given that both are at the core of
The Contribution of International Criminal Justice to Sustainable Peace and Development
2012
The interaction between and compatibility of peace and security on the one hand, and justice on the other, is at the heart of a raging debate that plays out in most if not all post- conflict settings, as well as in situations of ongoing violence and human rights abuses. This chapter focus is on the specific contributions of criminal accountability measures in conflict and post-conflict environments.
This new research project a) analyses foundational concepts in international criminal law, b) correlates the teachings of leading philosophers of law and scholars with international criminal law, and c) explores , against this background, the potential and limits of international criminal law. By generating such knowledge and perspectives, the project i) seeks to clarify and deepen the intellectual roots of the discipline of international criminal law. Such anchoring in older and more diverse schools and traditions of thought should contribute towards maturing international criminal law as a discipline, and cement the consensus around its basic building blocks. On the basis of a) and b) above, the project also ii) aims to offer reflections on how the discipline of international criminal law should evolve further, what its perceivable outer limits may be, and which gentle civilizers other than international criminal law should begin where its reach necessarily ends. In his recent study, 1 Professor Anthony T. Kronman, long-time Dean of Yale Law School, offers a learned lawyer's reminder of the limits of the reach of law. 1 Anthony T. Kronman, Confessions of a Born-Again Pagan, Yale University Press, 2016, 1,161 pp.
The Relationship Between International Criminal Justice and the Maintenance of Peace
Diritti umani e diritto internazionale , 2017
International criminal justice, as it has been conceived and developed in the nine-teenth century, aims to prevent and repress grave breaches of fundamental values of the international community as a whole. Nonetheless, it is disputed whether international criminal justice could be understood beyond its inherent criminal and procedural features. In particular, the question might arise on whether international criminal justice may be per- ceived as an instrument for enforcing primary international rules not criminal in nature; namely, as an instrument of international law intended to maintain or restore international peace and security. n light of the foregoing, the debate launched in this Special Section of Diritti umani e diritto internazionale aims to verify whether, and to what extent, the practice of the last two decades has implemented the said theoretical premises of international criminal justice. Symposium: - Emanuele Cimiotta, Gabriele Della Morte, "Introduction", in Diritti Umani e Diritto internazionale, 2016, n. 2, p. 361 ss.; - Maurizio Arcari, "A Vetoed International Criminal Justice? Cursory Remarks on the Current Relationship Between the UN Security Council and International Criminal Courts and Tribunals", in Diritti Umani e Diritto internazionale, 2016, n. 2, p. 363 ss.; - Frédéric Mégret, Nidal Nabil Jurdi, "The International Criminal Court, the. 'Arab Spring' and and Its Aftermath", in Diritti Umani e Diritto internazionale, 2016, n. 2, pp. 375 ss.; - Beatrice I. Bonafè, "Sentencing Practice and the Contribution of International Criminal Tribunals to the Maintenance of Peace" , in Diritti umani e Diritto internazionale, 2017. n. 1, pp. 101 ss.; - Valentina Azarova, Triestino Mariniello, "Why the ICC Needs a ’Palestine Situation’ (More than Palestine Needs the ICC): On the Court’s Potential Role(s) in the Israeli-Palestinian Context", in Diritti umani e Diritto internazionale, 2017. n. 1, pp. 115 ss.; - Andrea Spagnolo, "The Criminalization of Attacks Against Peace- keepers in the Light of the Function of International Criminal Justice to Maintain Peace", in Diritti umani e Diritto internazionale, 2017. n. 1, pp. 151 ss. - Harmen van der Wilt, "No Peace Without Justice or No Justice Without Peace?' Some Reflections on a Complex Relationship", in Diritti umani e Diritto internazionale, 2017. n. 2, pp. 435 ss.; - Emanuele Cimiotta, "Giustizia penale internazionale e mantenimento della pace: qualche riflessione conclusiva", in Diritti umani e Diritto internazionale, 2017. n. 2, pp. 447 ss.
This second volume in the series ‘Philosophical Foundations of International Criminal Law’ zooms in on some of the foundational concepts or principles of the discipline of international criminal law, with a view to exploring their Hinterland beyond the traditional doctrinal discourse. It contains eight chapters on concepts such as sovereignty, global criminal justice, international criminal responsibility for individuals, punishment, impunity and truth. Among the authors in this book are Christoph Burchard, Christopher B. Mahony, Milinda Banerjee, CHAO Yi, Javier Dondé-Matute, Barrie Sander, Max Pensky and Shannon E. Fyfe.
TAKING INTERNATIONALISM SERIOUSLY: WHY INTERNATIONAL CRIMINAL LAW MATTERS
It is often argued that international criminal law (ICL) is designed to overcome deficiencies in national legal systems. When the state is incapable or unwilling to punish, it must be replaced by a reliable and impartial agent. Under this view, ICL is a pragmatic solution to the partiality and/or ineffectiveness of national legal systems. This Article rejects such a view; ICL is not a pragmatic solution to the partiality, lack of accountability and/or ineffectiveness of national legal systems. Nor is ICL international by coincidence or due to contingent features such as the greater competence of international tribunals, their better accountability or impartiality. Rather, the goods of international criminal law and the values it promotes can only be provided by international entities. We call this view ‘robust internationalism’. According to robust internationalism, the international character of the tribunals tasked with applying international criminal law is necessary to successfully fulfill their mission. The article further argues that robust internationalism is implicitly recognized by the founders of ICL and is also reflected in some of its doctrines. Failing to account for it is therefore incongruous with the realities of ICL as practiced today.