International Criminal Justice Case Selection Independence: An ICJ Barometer (original) (raw)
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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.
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.
Accepting the political face of international criminal justice
International Journal of Law, Crime and Justice, 2019
The emergence of international criminal justice in general and of the modern international criminal courts in particular (the International Tribunal for the former Yugoslavia-ICTY, for Rwanda-ICTR and the permanent International Criminal Court-ICC) has been a matter of mixed reception by the academic and policy communities. After years of initial enthusiasm in the academic world and among international human rights campaigners about the creation and functioning of international criminal tribunals, the atmosphere has transformed into one of disappointment, blunt criticism and often open rejection. Over the past decade it has been difficult to find academic articles and books which are affirmative about the tribunals' trial record, about the fairness of their proceedings, or their contribution to the fight against impunity. Instead, a vast and devastating literature appears to have emerged, which can be divided into four different, critical strands. The first is critical about the very concept of international criminal justice, the globalisation of justice and the repercussions of top-down approaches to conflict resolution, the legalisation of politics and the influence of international organisations on community dynamics on the ground (Corrias and Gordon, 2015; Nagy, 2008; Schwöbel, 2014). The second type of literature, relatively nuanced, concentrates on the establishment of the tribunals and the international negotiations which had led to their creation. There, the creation of the tribunals is regarded as legitimate, although there is an ongoing discussion about the United Nations Security Council's (UNSC) right to establish them as subsidiary organs under Article 7 of the UN Charter. The debate only concerns the ICTY and the ICTR, because the ICC was created by a concert of states over whose territories and citizens it wields jurisdiction. Themain contentious issue with regard to the ICC is the role of the UNSC to transfer jurisdictions to the ICC over countries, which never ratified the ICC's Rome Statute (La Haye, 1999; Schiff, 2013). The third strand of literature focusses on the functioning of the tribunals, the way their chambers apply international criminal law, and the tribunals' statutory documents and evolved judicial practice, which expands the traditional notions of criminal re
JUDGING MORE BY JUDGING LESS: ISSUES AND LIMITS OF THE INTERNATIONAL CRIMINAL COURT
Pravni vjesnik, 2023
With the International Criminal Court (ICC) losing not only its chance of incorporating the same great powers that decided not to support it at the very start-out of fear of losing dominance-but also about to lose long-time members such as the ones from the African Union, its chances of being a mean of institutionalized punishment against the worst individual crimes of international concern are trembling. Would the ICC obtain better outcomes if it discarded entirely its authority against member governments, and restricted its jurisdiction to cases suggested by the same countries where the crimes had been allegedly committed? The ICC could hence maintain an important role in the canalization of local jurisdictions through common, global rules: this way, even if through selective jurisdiction, it could at least limit and moderate the intentions of member States when dealing with inconvenient local enemies or oppositions. Through an analysis of the jurisdictional past of this institution and a contextualization of its controversial relationship with the United Nations (UN) Security Council, this paper aims to furnish a comparison of available outcomes, and elucidate the aforementioned possibility as an advantageous framework, although less ambitious. An eventual last focus will be put on the risks of the opposite trend, an ambitious but inefficient institution, possibly leading to the legitimization of its failures.
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.
The aims of this paper are: 1) To test whether the “integrated approach” exists in the areas of individual criminal responsibility and the international criminal justice system; 2) To determine if the current system of international criminal justice, and in particular that established by the International Criminal Court Statute, is satisfactory; 3) To verify whether the 2010 Review Conference of the ICC Statute has improved international criminal justice; 4) To examine if the practices of both ICC and other institutions have produced any further improvements; and5) Finally, to explore the necessary reforms to be made in order to turn the ICC into a more effective international criminal justice institution.
The Rise of International Criminal Law: Intended and Unintended Consequences
European Journal of International Law, 2009
The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed confl ict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ' crowded ' other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.