Journal of International Criminal Justice - Advance Access

The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Hercegovina

Clark, J. N. — 2009-07-02

Notwithstanding the recent proliferation of war crimes tribunals, a fundamental question remains: whether the confidence that such institutions have generated among their supporters is, in fact, justified. Using the International Criminal Tribunal for the former Yugoslavia (ICTY) as a case study, this article empirically explores four reputed merits of criminal trials — that they dissipate calls for revenge, individualize guilt, establish a historical record and contribute to reconciliation. It demonstrates that each of these claims, with the possible exception of the first, is problematic, which, in turn, highlights the limits of retributive justice. Hence, the article advocates the creation of a Truth and Reconciliation Commission in Bosnia to complement the ICTY's work. It also maintains that our expectations of war crimes tribunals need to be more realistic, in view of the obstacles and challenges that they face, and that their mandates should be more specifically tailored to the particular circumstances in which they are operating.

Jonathan Doak, Victims' Rights, Human Rights and Criminal Justice: Reconceiving the Role of Third Parties

Perez-Leon Acevedo, J. P. — 2009-06-23

The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case

Kress, C. — 2009-06-17

The Pre-Trial Chamber correctly held that the formulation of the last (common) element in the Elements of Crimes on Genocide does not purport to amend the crime's definition but provides for a welcome clarification. The contextual elements should not, however, be seen as an addition to the crime's actus reus but as an objective point of reference for the determination of a realistic genocidal intent. The Chamber's requirement of a ‘concrete threat’ is unfortunately worded because it suggests an unduly stringent contextual threshold.

Current Developments at the Ad Hoc International Criminal Tribunals

Margetts, K., Janisiewicz, N. — 2009-06-17

Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation

Burke-White, W. W., Kaplan, S. — 2009-06-15

The ICC Pre-Trial Chamber II (PTC) has recently initiated an inquiry into the admissibility of the case against the leadership of the Lords Resistance Army (LRA) in the Uganda situation. In an effort to resolve the conflict in northern Uganda, the Government signed a preliminary agreement in 2006 with the LRA providing for domestic prosecution of the indictees. This article examines the issues regarding both the nature of challenging admissibility generally and particular issues that arise from such challenges in the context of state self-referrals. The article proposes three different visions of admissibility that may arise in an admissibility challenge and applies them to the current PTC examination as well as a possible challenge by Uganda. The article suggests a framework for analysis and considers the role of the Court in shaping the contours of acceptable domestic justice.

Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-based Crimes

Rose, C. — 2009-06-12

This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that both threaten the rights of the accused and weaken the Prosecution's cases against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution's recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint criminal enterprise and forced marriage in its recent AFRC Appeal Judgment, its pronouncements may be of limited use or applicability to the ongoing Taylor case.

Unravelling the Extraterritorial Riddle: An Analysis of R (Hassan) v. Secretary of State for Defence

King, H. — 2009-06-09

The European Convention on Human Rights imposes an obligation on contracting states to secure the rights of persons within their ‘jurisdiction’. Yet, the meaning of ‘jurisdiction’ is contested, with the result that the extent of states’ extraterritorial obligations is unclear. R (Hassan) v. Secretary of State for Defence is the latest in a series of English cases to examine the obligations of the British forces in Iraq. This comment critically assesses the High Court's reasoning, as well as the House of Lords’ decision in Al-Skeini on which it relies, and in so doing proposes a more nuanced understanding of ‘jurisdiction’.

On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone

Mulgrew, R. — 2009-06-05

With less than two years before the proposed closure of the Special Court for Sierra Leone (SCSL) and its Detention Facility, it is still unclear where individuals sentenced by the SCSL will serve their sentences. Drawing on qualitative empirical research, the author analyses the statutory options for the implementation of the sentences of imprisonment imposed by the SCSL. She also makes recommendations for the development of international penal policy and suggests structural reforms for international enforcement systems.

How Do States Join the International Criminal Court?: The Implementation of the Rome Statute in Japan

Meierhenrich, J., Ko, K. — 2009-06-05

Against the background of Japan's long-anticipated implementation of the Rome Statute of the International Criminal Court in 2007, this article analyses the legislative implications of treaty accession. One of the causes of the accession delay in Japan — nearly 10 years passed between the government's participation in the adoption of the Rome Statute and its implementation thereof — was the challenge of aligning the conflicting imperatives of domestic and international law. This article delineates these conflicting imperatives, reconstructing the deliberations over procedural and substantive law that attended the drafting of implementing legislation in Japan. We demonstrate in our analysis that unlike most other countries who joined the ICC community as States Parties, Japan had to overcome particularly formidable constitutional and legislative hurdles before membership in the permanent international court could become a possibility. Among other things, the implementation of the Rome Statute required a renegotiation, in key respects, of the fundamental principle upon which Japan's post-World War II foreign and domestic policy rested, namely the renunciation of war and the culture of antimilitarism that is enshrined in Article 9 of the Constitution of Japan.

The Continuous Quest for Proper Modes of Criminal Responsibility

Wilt, H.G. v. d. — 2009-06-03

The author discusses the recent decision of the ICC Pre-Trial Chamber to issue an arrest warrant against President Al Bashir from the viewpoint of the choice of the alleged mode of responsibility. In emphasizing the need and the difficulty of choosing the most proper concept of criminal responsibility, he explains how international criminal law has oscillated from the notion of joint criminal enterprise to the concept of co-perpetration and other forms of participation. In particular, he illustrates how in the first decisions in the ICC system (Lubanga, Katanga and Chui) the notions of co-perpetration and perpetration-by-means have been at the core of the case law. In this regard, he analyses both the majority opinion and the dissent of judge Usacka in Al Bashir, highlighting the strong influence of German legal thought on the ICC Statute and on recent ICC case law.

Karin Arts and Vesselin Popovski (eds), International Criminal Accountability and the Rights of Children

McBride, J. — 2009-06-03

Jo Stigen, The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity

Hein, D. P. — 2009-06-03

David A. Blumenthal and Timothy L.H. McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance?

Batros, B. — 2009-06-03

Memory as Remedy for Evil

Todorov, T. — 2009-04-24

It is often presumed that, if we remember the evil committed in the past, we can avoid it today. However, there is no reason to conclude that evil is generally on the decline. If we observe the process of production of narratives about evil and good, we can identify four main roles: on the one hand (i) the villain and (ii) his victim; on the other (iii) the hero and (iv) his beneficiaries. To this, one should add the distinction between (a) us (our community) and (b) the others (those who are foreign, different or enemies). The sterility of calls to remember is rooted in our constant identification with heroes or victims and the extreme distance we put between evildoers and ourselves. A survey of the French experience shows that to prevent a ‘repetition of events’ requires thinking about the circumstances that gave rise to barbarous acts, the motivations of those who were responsible and the means they employed. Consideration of the Khmer Rouge crimes (1975–1979) shows that terrible collective crimes are not the work of sadists or the mentally ill, but result from reactions familiar to everyone. The Khmer Rouge dreamed of a purified society, purged of its enemies, at long last ‘delivered from evil’. The end seemed to justify the means. According to the author, it is wrong to believe that criminals are different from us, that they are ‘inhuman’. The difference between executioners and victims does not lie in the biological nature of individuals: there is no DNA specific to murderers. Instead, it proceeds from the differing circumstances in which the destiny of one individual unfolds from that of another. How then should we react to evil? When tackling the problems of a traumatic past, we can pursue two different goals: to achieve abstract justice, through the punishment of the culprits, or to aim at the moral well-being of the persons living in the community affected by the crimes. Thus we can have ‘punitive justice’, which uses means such as executions and imprisonment, and aims exclusively at the application of the law, and ‘restorative justice’, which uses other means of punishment and pursues the moral well-being of the community, as was the case for the South African Truth and Reconciliation Commission. In sum, according to the author, the memory of the past serves no purpose if it is used to build an impassable wall between evil and us — we, who identify exclusively with irreproachable heroes and innocent victims and seek to drive the agents of evil outside the confines of humankind. In everyday life, we easily forget the harm we have inflicted, but hold onto the memory of the harm we have endured. The remedy must not consist in merely remembering the evil to which our group or our ancestors were victims. We have to go a step farther and ask ourselves about the reasons that gave rise to the evil.