Journal of International Criminal Justice - current issue

Editorial

Zappala, S. — 2009-04-16

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

Delmas-Marty, M. — 2009-04-16

The law's responses to massacres seem to vacillate between two models: (i) the model of the ‘criminal law of the enemy’ inspired by the national criminal law and rendered topical again by the attacks of September 11; (ii) the model of the ‘criminal law of inhumanity’ symbolized by the paradigm of crimes against humanity. The latter model is better suited to take account of the qualitative dimension of massacres, i.e. the fact that they, besides being mass offences (quantitative criterion), also offend against humanity. To establish a ‘criminal law of inhumanity’ as a model with a universal, or universalizable, dimension, three conditions are necessary, which concern (i) the definition of the crimes, (ii) the assignment of responsibility and (iii) the nature of the punishment. As for the definition of the crime, one could implicitly deduce from the list of acts constituting crimes against humanity (Article 7 of the International Criminal Court Statute) that humanity so protected has two inseparable components: the individuality of each human being, not reducible to membership in a group, and the equal membership of each in the human community as a whole. With regard to the second condition, it is not sufficient to hold responsible the de jure or de facto leaders; intermediaries and perpetrators, at all levels of hierarchy, must also be held accountable. As for the third condition, it is not sufficient to content oneself with the watchword of the fight against impunity without bringing up the nature and functions of the punishment; hence the necessity not only to rethink the role ‘criminal’ law can play in a policy of punishment, but also to focus on prevention, reparation and reconciliation. Finally, the author suggests that the proposed model of a ‘criminal law of inhumanity’ must be built through the interplay between municipal law and international law. On the one hand, the wealth of national legal systems — also with regard to penalties and responsibility — should be better integrated into international criminal justice; on the other, national criminal systems should be better adapted to conditions of international law, through the introduction into domestic law of the definitions of the crimes and also the rules for assigning criminal responsibility.

Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial-Inquisitorial Dichotomy

Jackson, J. — 2009-04-16

This article considers how well evidentiary processes within the international criminal tribunals match up to the challenge to provide fair and reliable verdicts. Rather than using the adversarial–inquisitorial dichotomy as the basis for exploring this question, the article takes as its reference point the well recognized norms of equality of arms and the right to adversarial procedure. It is argued that although the tribunals have met the minimum standards of fairness required by these norms, the combination of adversarial party presentation and free admission of evidence, within an evidentiary context in which it is difficult for the defence to make their own inquiries, has restricted defence access to information and its ability to challenge evidence. The article goes on to argue that some of these shortcomings have been addressed within the International Criminal Court by the establishment of a Pre-Trial Chamber but that the Chamber needs to be developed further to promote a truly participative approach to fact-finding between the parties.

Foreword

Zappala, S. — 2009-04-16

Following Historical Precedent: An Argument for the Continued Use of Military Professionals as Triers of Fact in Some Humanitarian Law Tribunals

Meyer, R. V. — 2009-04-16

The military commissions at Guantánamo Bay have properly been the subject of much legal scrutiny and criticism. Their use of military officers as triers of fact, however, merits further consideration. Salim Hamdan may have benefited from having military officers decide his case. His panel was composed of highly educated military professionals who have dedicated their lives in service of the law. Despite their enmity towards the accused, these officers were actually in a better position to be sympathetic and understanding to the Hamdan defence than a civilian jury. The unique aspects of military service and combat experience will also make them excellent partners with professional jurists in future humanitarian law tribunals.

The Hamdan Case and the Application of a Municipal Offence: The Common Law Origins of 'Murder in Violation of the Law of War'

Dehn, J. C. — 2009-04-16

This article examines the legal origins of ‘murder in violation of the law of war’, an offence defined in the US Military Commissions Act (MCA) and resorted to in the case against Salim Ahmed Hamdan. Hamdan was acquitted of conspiring to commit this offence based in part on a questionable legal instruction. The acquittal may have been proper under a correct view of the law. Nevertheless, the specific context in which this offence was alleged, combined with the judge's instruction, highlights key aspects of the US approach to the prosecution of unprivileged fighters for a ‘law of war violation’. This approach, which is substantially represented by the US Supreme Court's judgment in ex parte Quirin, has been criticized by International Humanitarian Law (IHL) scholars as an erroneous view of customary IHL. However, close analysis of the legal and historical context in which this approach developed reveals that ‘murder in violation of the law of war’ is a municipal US offence that represents an English common law implementation of the law of nations. This article explains why reading this offence to incorporate IHL war crimes, as Hamdan's judge did, is inappropriate in the context of the MCA and Hamdan's case. It then demonstrates that the authorities relied upon by the Quirin Court, the Lieber Code and a treatise by authoritative US military law commentator, William Winthrop, understood punishment for law of war violations to be permitted by the law of nations but imposed under municipal law. Thus, ‘murder in violation of the law of war’ is properly viewed as a municipal, common law offence punishing unprivileged fighters. In future studies the author will address the appropriateness of prescribing and enforcing this municipal offence in extraterritorial armed conflict.

International Criminal Tribunals and the Media

Simons, M. — 2009-04-16

The media are widely different in outlook and level of interest when the subject is international criminal justice. Newspapers and television stations have widely divergent needs. Similarly, there are marked discrepancies between media in countries directly affected by the atrocities that are probed during international trials, and media elsewhere. In reporting war crimes trials for public opinion at large (in this case in the United States and in Europe), one must take into account the difficulty of capturing the interest of readers. The crimes in Bosnia or in Rwanda were in the headlines more than a decade ago. Today attention has moved to other countries. Ideally, the trials should be presented through captivating narratives, but the complexity and length of criminal proceedings often make this difficult. Although the arrests of senior officials get much attention, interest in the legal aspects of their case wanes quickly. Moreover, the impression that international criminal justice is selective, and seems to wield double standards as to which cases are prosecuted, and which are not, continues to produce scepticism.

The Impact of the ICTY Trials on Public Opinion in the Former Yugoslavia

Klarin, M. — 2009-04-16

If the impact of the ICTY in the countries of the former Yugoslavia were to be measured exclusively by the poor public perception of the Tribunal that prevails, perhaps the best course of action would be to shut its doors without waiting for the end of its mandate. The author tries, however, to show the more complex and multifaceted nature of the perception of the Tribunal at different levels, in the different countries of the former Yugoslavia, as well as at different moments in time. His conclusion is that the ICTY should have done more to improve its image in the region, thereby making it more difficult for the local elites to distort and manipulate its message.

Discussion

2009-04-16

Foreword

Cassese, A. — 2009-04-16

Lemkin on Genocide of Nations

Serbyn, R. — 2009-04-16

Modes of Participation in Crimes Against Humanity: The Hechingen and Haigerloch Case

2009-04-16

Whose 'Conduct Unbecoming'?: The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator

Ben-Naftali, O., Zamir, N. — 2009-04-16

The article focuses on the decision of the Israeli Military Advocate General (MAG) to charge an officer who ordered the shooting of a handcuffed, blindfolded Palestinian demonstrator, and the soldier who executed the order, for ‘conduct unbecoming’. It advances the following propositions: (i) from the perspective of the applicable international law, the facts of the case qualify the shooting as a war crime; (ii) said decision of the Israeli MAG is indicative of a policy of tolerance towards violence against non-violent civilian protest against the construction of the Separation Wall; (iii) the implication of such policy is twofold: first, it might transform ‘conduct unbecoming’ — which as a matter of law is a war crime — into a crime against humanity; second, it may well be construed as an invitation to the international community to intervene through the exercise of universal jurisdiction.

The Court-martial of Corporal Payne and Others and the Future Landscape of International Criminal Justice

Rasiah, N. — 2009-04-16

The court-martial of Corporal Payne and others involved the first charges brought under the International Criminal Court (ICC) Act in the United Kingdom, and led to the first British soldier ever to be convicted for a war crime under international law. But the significance of the case extends far beyond its national implications; it represents an important illustration of the national-level accountability heralded by the ICC regime. This article critically examines the court-martial of Corporal Payne and others, and uses this analysis as the basis of a broader exploration of the contrast between domestic courts-martial and international courts as fora for trying international crimes. The final part of the article explores the potential significance of that dichotomy for the future landscape of international criminal justice.

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Wanless, W. C. — 2009-04-16

Given that the Rome Statute does not provide jurisdiction to try corporations for breaches of international criminal law, it has been suggested that national jurisdictions might be used to fill this impunity gap. The author presents several arguments. First, the international criminal law system, including the Rome Statute — and particularly the principles of universal jurisdiction and complementarity — provides the theoretical grounding for states to assert jurisdiction over international crimes wider than the International Criminal Court (ICC). Second, Canada, owing to interactions between its domestic legislation implementing the ICC Statute and existing national criminal law, is now able to prosecute corporations for breaches of international criminal law. Finally, this increased jurisdiction of Canadian courts is consistent with the current status of corporations under international criminal law. What is really interesting about Canada's approach, however, is not so much that it has created a new legal principle, but rather that it is one of the first countries to establish jurisdiction over international crimes committed by corporate entities which were previously committed with impunity.

By stating that I could not guarantee that the army is not using forced labour, I certainly imply that they might, (and they might) but I am saying that we do not have to monitor the army's behaviour: we have our responsibilities; they have their responsibilities; and we refuse to be pushed in to assuming more than what we can really guarantee. About forced labour used by troops assigned to provide security on our pipeline project, let us admit between Unocal and Total that we might be in a grey zone.¹

JICJ-Giorgio La Pira Prize Announcement

2009-04-16

Antonio Cassese Prize for International Criminal Law Studies Announcement

2009-04-16

Antonio Cassese Prize for International Criminal Law Studies Regulations

2009-04-16