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Abstract: There is a recent proliferation of courts and tribunals to prosecute perpetrators of genocide, war crimes, and crimes against humanity. The zenith of this institution-building is the permanent International Criminal Court, which came into force in 2002. Each of these new institutions rests on the foundational premise that it is appropriate to treat the perpetrator of mass atrocity in the same manner that domestic criminal law treats the common criminal. The modalities and rationales of international criminal law are directly borrowed from the domestic criminal law of those states that dominate the international order. In this Article, I challenge this foundational premise. First, I posit that the collective nature of the system criminality of mass violence is qualitatively different than the deviant nature of individual transgressions punished under ordinary domestic criminal law. Accordingly, borrowing from the national to ground the international simply is a convenient, although inappropriate, manifestation of path-dependency. Second, I evaluate the sentences issued by international criminal justice institutions. Surprisingly, although international tribunals have sentenced over 100 offenders over the past five years (and will sentence many more in the immediate future), very little evaluative research has been done on international sentencing. The purpose of this exercise therefore is to build an empirical research agenda with a view to assessing whether the punishment actually inflicted by international tribunals satisfies their avowed deterrent, retributive, and expressive aspirations. Third, based on the evidence, I propose a disarticulation between the effects of international sentencing and its aspirations. One explanation for this disarticulation is the absence of a sui generis theory of punishment for those who commit mass violence. Although there has been expansive institution-building in international criminal law, there has been little theoretical modeling. Unless the brick and mortar institutions are supported by a robust criminology, penology, and victimology, international criminal law will fall short. This Article then proposes several elements that could form part of this self-supporting theoretical and operational framework.
Abstract: This Article examines shifts in international law as regards the use of force - the jus ad bellum - that emerged in the wake of the September 11, 2001 terrorist attacks and subsequently were invoked in part by the U.S. and U.K. to justify military intervention in Iraq. These shifts import some elasticity - in time, space, and place - into the pre-existing legal understanding of self-defense. To be sure, the general consensus that supported the use of force in Afghanistan as a legitimate exercise of self-defense has diluted as the use of that force expanded into other theaters of operation. It is therefore unsurprising that considerable controversy envelops claims by some states that international law entitles them to use force in self-defense in a preemptory manner. This Article explores the articulation of this and other justifications for the military intervention in Iraq. It also unpacks the difficult question whether these entitlements are constitutive of inchoate legal rules or simply deviations from the still operational old rules. Moreover, this Article encourages scholars and students of international law and relations to consider why a movement is afoot to change the rules and how this affects the architecture of collective security. In order to facilitate this process of reflection, this Article explores the policy implications of retaining the old rules or adopting the newly alleged rules.
Abstract: In 2001, the International Law Commission (ILC) adopted Draft Articles on State Responsibility. These establish the secondary obligations that flow from a breach of an independent and preexisting primary obligation. The Draft Articles address a number of issues, including the attribution of conduct to a state, justifications for breach, circumstances precluding wrongfulness, reparation, compensation, bilateral and erga omnes obligations, and countermeasures. This Essay tracks the influence that the Canada-U.S. Trail Smelter arbitral decision has had on the Draft Articles. Trail Smelter is referenced four times in the Commentaries to the Draft Articles; it has played some part in the formulation of specific Articles regarding continuing breach, non repetition of breach, remoteness of harm, and compensation. On a more general note, though, Trail Smelter's influence may be circumscribed by shifts in international environmental law toward facilitating compliance with primary rules rather than seeking compensation for breaches of those rules. This explains why Trail Smelter's evocation of secondary obligations - and the law of state responsibility more generally - lead somewhat of a lonely existence in terms of the law-in-practice regarding international environmental protection. Trail Smelter has played a more vivid role in the ILC's work on state liability (2001), in particular the preventative aspects. Here, the primary rule of Trail Smelter - namely the obligation not to cause serious environmental harm - has acquired considerable currency, exceeding that of Trail Smelter's secondary obligation of reparation and compensation for violation of that primary rule.
Abstract: Creating mechanisms to promote individual accountability has become a focal point of activity for international lawyers. This activity has, among other things, led to the adoption of the Rome Statute of the International Criminal Court. The Rome Statute innovates on both the procedural and substantive fronts. Along with creating an enforcement mechanism in the form of the International Criminal Court (ICC), the Rome Statute also refines prior customary and conventional rules by providing a detailed list of what can prospectively be sanctioned as the "most serious crimes of concern to the international community as a whole." In this regard, the Rome Statute creates important linkages between human rights, international humanitarian law, and international criminal law. But these linkages are far from complete. One area in which the Rome Statute is somewhat reticent relates to the environmental consequences of war and environmental crimes generally. This may in fact reflect a disjunction between international environmental law and humanitarian concerns. This gap should trouble international lawyers: just as armed conflict often creates a context in which the most serious human rights abuses occur, so too, does it create a similar context for the infliction of wanton and extensive destruction to the environment. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Part III examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC's jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. In the end, the effective promotion of environmental security requires a multifaceted approach that combines criminal prosecution, preventative measures, and specially tailored remedies.
environment, armed conflict, international law, criminal punishment
Abstract: Following the 1994 Rwandan genocide, national and international trials set out to encourage national reconciliation, promote peace, punish perpetrators, foster a culture of human rights, and effect justice. In this Article, Professor Mark Drumbl questions the ability of these trials to achieve these goals and suggests they may in fact aggravate ethnic identity politics, thereby threatening Rwanda's long-term stability. He argues that the highly interdependent yet dualist nature of Rwandan society, together with the widespread level of participation in and victimization by the genocide, create a situation where accountability for the violence and the deterrence of future violence can be pursued more effectively through the restorative cultivation of shame, rather than through the retributive imposition of guilt. Although criminal sanction usually attaches to deviant conduct, participation in genocide in Rwanda was not particularly deviant, nor was it an individualized, pathological transgression. Professor Drumbl asks whether there might be times and places where collective wrongdoing needs to be exposed and not hidden by the law's preference for individual fault. Despite the concerns that ought to be emerging from the Rwandan experience, international lawyers continue to push - with significant degrees of success - for selective criminal prosecution as a preferred, and potentially exclusive, response to mass atrocity. In contrast, he suggests that creating presumptions in favor of criminal trials may preempt the supervening inquiry about the suitability of those trials to the afflicted society. Professor Drumbl concludes that policy responses to mass atrocity should be founded upon contextual inquiries, not driven by globalitarian or legalistic agendas, and should recognize the uniqueness of each incident of mass atrocity and the uniqueness of the reconstruction process that should follow, instead of flattening that uniqueness. This may lead to a preference for flexible, polycentric responses within and outside of what may be customarily identified by the West as the "law."
international law, genocide, retribution, restorative justice, Africa, Rwanda
Abstract: This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the Pashtunwali. The Pashtunwali consists of a blend of custom and practice that emerges from a context of embedded conflict and is filtered through an Islamist lens. The Pashtunwali propounds a restorative approach to human rights abuse in which the abuse is rectified when the family of the abuser transfers money, goods, animals or, preferentially, young girls or women to the family of the abused. Drawing from recent literature on law and culture, this Article posits that custom and culture in Afghanistan as operationalized through the Pashtunwali are politically contingent (and at the moment defined by patriarchal elites) instead of statically or immutably oppressive to women. If thoughtfully constructed, transitional justice institutions can play an important collective role that transcends the adjudication of individual guilt or innocence. They can pluralize the number of domestic actors that contribute to the definition of customary and cultural norms. This implies that transitional criminal interventions could play a democratizing role insofar as they could advance claims by all members of local communities to a right to involve themselves in the formulation of customary law. In the end, this Article links transitional criminal justice to the innovative conception of freedom within culture, instead of freedom from culture.
Abstract: The criminal adjudication of those who perpetrate egregious human rights violations has gained normative currency among international lawyers and rights activists. This norm has encouraged the construction of a variety of international legal institutions, specifically tribunals and courts. This Article tracks the emergence of this norm and suggests that, at its root, it derives from a general extension of Western municipal criminal law, and Anglo-American common-law methodologies in particular, to the international context. This triggers two interrelated concerns: is this extension (1) theoretically sustainable and (2) operationally effective for adjudicating wrongdoing in all cases of mass violence? This presentation posits that important differences between municipal crime and international crime suggest that the rationalities of the former cannot so easily be proffered for the latter. Moreover, the justice that may result from this extension may be externalized from the very communities it is intended to serve. In the end, a call is made for international lawyers to structure an independent criminology for the adjudication of international crimes, and to consider the relevance of communitarian and cross-cultural approaches in this regard. This call is informed by, and in turn reflects, the experiences of international criminal law in adjudicating perpetrators of the Rwandan genocide.
Abstract: Genocide struck the tiny African nation of Rwanda in 1994. Since then, national, international, and foreign trials have labored under a heavy load. These trials have been assigned a tremendous amount of responsibility by their various pieces of enabling legislation. They valiantly have endeavored to discharge these responsibilities, which include an ambitious array of goals: reconciliation, deterrence, peace, justice, and the cultivation of a culture of human rights. This paper examines the extent to which these trials attain these multiple, and often overwhelming, goals. This, in turn, invokes a discussion of how the administration of justice for Rwanda can be ameliorated and, furthermore, the lessons that judicial experiences with Rwanda can offer for other postconflict societies. To be sure, there is a duty to prosecute serious human rights abuses. This duty is to be welcomed. However, it cannot exist in the abstract. It must be operationalized on the ground and put in place among affected (and, thereby, afflicted) peoples. This is the level at which this paper aims to inform the debate, principally by suggesting how and why prosecutions could be informed by contextual implementation and design. Accountability for serious international crimes is - and normatively ought to be - a universal, cross-cultural notion. No culture welcomes endemic human rights abuses nor impunity for those who perpetrate such abuses. But accountability may be promoted in different ways in different places.
Abstract: This Article explores international and criminal law issues involved in U.S. and transnational responses to the tragic events of September 11, 2001. The thesis is raised that the September 11 attack constitutes a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. This means that the attack is more appropriately categorized as a criminal or outlaw attack, not an armed attack or act of war. Under traditional public international law, this finding may problematize the legality of the military strikes initiated by U.S. and British forces on October 7, 2001. However, on a more prospective note, state practice and international organization response to the strikes suggest: (1) a transformation in the treatment by international law of the use of lethal force when undertaken for humanitarian or security purposes (in this regard, building upon the precedent set by NATO's intervention in Kosovo); (2) an expansion of state responsibility for individual criminals who may not be effectively controlled by a state; (3) a diminution of the role of the Security Council and United Nations on matters of global peace and security; and (4) an increase in the elasticity of individual and collective self-defense under Article 51 of the Charter of the United Nations. However, categorizing the violence as criminal does not end the inquiry. Actually, this only begins the process of reflection. How should criminal law respond to egregious behavior by non-state actors? Should punishing such behavior be the task of domestic criminal law or, rather, international criminal law? If international criminal law is the appropriate paradigm, how ought it to be applied to the September 11 attacks? Under what methods and procedures, and in which fora, should alleged terrorists or conspirators be tried? This Article suggests that trials will have to be carefully designed in order to deter future terrorist violence. This may necessitate the inclusion of culturally pluralist approaches. The need for this cultural contextualism may clash with the increasing hegemony of Western criminal trials as the mechanism to implement putatively "universal" criminal justice.
Abstract: Developing nations are demonstrating some success in basing their participation in international environmental governance upon commitments by developed nations to provide financial resources and technology transfer. In recent years, these commitments have achieved textual status within a number of multilateral agreements. Part I of this Article identifies and documents treaty-based examples of this swap of resources in exchange for participation - in particular, in the areas of climate change, biodiversity use/conservation, and ozone protection. This Article suggests that this swap represents a dynamic and emerging relationship between the North and the South that can best be described as a "shared compact." Part II explores the juristic basis of the shared compact. Although treaty-based, the shared compact derives from several important and interdisciplinary principles of international environmental and economic law, moral philosophy, and international relations theory. In Part III this Article argues that, among these diverse sources, the shared compact largely is the result of "selfish justice," namely the developed world seeking to avoid the environmental externalities of the developing nations' future industrialization and the developing world seeking to minimize the costs of environmental protection, although both groups elected to proceed through broad multilateral negotiations, thereby ensuring that smaller developing nations not be left behind or excluded through what would likely have been more cost-effective bilateral bargaining among the major players. The primus inter pares nature of the selfish justice motivation explains why the environmental issue-areas in which the shared compact has arisen (and would arise in the future) tend to be ones in which common concerns of humanity are threatened or in which externalities are imposed on the developed world, and not issue-areas with local impact upon developing nations alone, regardless of the severity of that impact. Part IV raises important questions triggered by the emergence of the shared compact. These include: (a) juridical questions related to the legal status of the transfer commitments; (b) practical questions related to their ability to enhance compliance with and implementation of the international environmental agreements in which they are found; and (c) political questions related to the plausibility of maintaining the political will in the North, particularly in the United States, to remain within a shared compact given increased awareness of the costs thereof. In the end, the shared compact may extract international environmental governance from certain impasses. But it may replace these with new, and potentially insurmountable, ones.
Abstract: In "Atrocity, Punishment, and International Law," Mark Drumbl rethinks how perpetrators of atrocity crimes should be punished. After first reviewing the sentencing practices of courts and tribunals that censure genocide, crimes against humanity, and war crimes, he concludes that these practices fall short of the goals that international criminal law ascribes to punishment, in particular retribution and deterrence. This raises the question whether international prosecutorial and correctional preferences are as effective as we hope. Drumbl argues that the pursuit of accountability for extraordinary atrocity crimes should not uncritically adopt the methods and assumptions of ordinary liberal criminal law. He calls for fresh thinking to confront the collective nature of mass atrocity and the disturbing reality that individual membership in group-based killings is often not maladaptive or deviant behavior but, rather, adaptive or conformist behavior. This book deploys a bold, and adventurously pluralist, interpretation of classical notions of cosmopolitanism to advance the frame of international criminal law to a broader construction of atrocity law and a more meaningful understanding of justice. Drumbl concludes by offering concrete reforms. He urges contextual responses to atrocity that welcome bottom-up perspectives, including restorative, reparative, and reintegrative traditions that may differ from the adversarial Western criminal trial.
Abstract: In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the federal district courts (e.g. Hamdan v. Rumsfeld); and the disaggregating of conventional and customary international law from the conduct of the war on terror. I argue that Guantanamo stands as a metaphor for a broader view that posits law as impairing instead of promoting national security interests. The resultant twilight of law extends well beyond Guantanamo to include detentions in Iraq and Afghanistan; renditions; attempts to minimize judicial review of decisions of the executive branch; and bold reinterpretations of the Geneva Conventions and Convention Against Torture. The paper ends by proposing a different model that, instead of viewing the crimping of law as necessary to promote national security interests, posits a synergy between respect for law and protection of national security.
Abstract: A diverse array of institutions is involved - whether by design or by request - in dispensing justice for the former Yugoslavia. These include the International Tribunal for the former Yugoslavia (ICTY); national criminal courts of a number of countries; U.N.-assisted hybrid criminal tribunals; ordinary courts hearing civil cases; the International Court of Justice (ICJ), which is involved in reparative claims invoking state responsibility in a number of matters involving the FRY, Croatia, and Bosnia and Herzegovina; and, potentially, the International Criminal Court (ICC) in the sad event that new breaches of international humanitarian law occur as of July 1, 2002, in the states emerging from the former Yugoslavia. This Article posits that this diversity creates a need for the ICTY to assess its own place and role. In so doing, it needs to: (1) look downwards and contemplate its interface with proceedings, whether criminal or civil, undertaken by national courts; and (2) look across (or up?) to international institutions, in particular the ICJ (which is being called upon to resolve state responsibility civil claims), with a view to crafting a healthy relationship. The fact that the tragedy in the former Yugoslavia is being redressed through such a diverse palette of institutions raises a number of difficult questions. First among these is an inquiry regarding the effects of enforcing international law through a decentralized, horizontal pattern of diffuse institutions. There are strengths to decentralized enforcement, insofar as it can facilitate flexible, specialized, and contextual legal responses. It can increase the sheer number of legal institutions, thereby augmenting the extent to which the conflict in the former Yugoslavia is legalized. It can promote specialized adjudication, which develops expertise and professionalism that, in turn, appreciates respect for adjudicators among litigants. However, there may also be weaknesses, insofar as decentralized enforcement may lead to inconsistencies that arguably could weaken predictability and certainty in international criminal law. Which is more germane to the legitimacy of international law: context or consistency? Breadth or depth? Although the focus of this Article is limited to the ICTY specifically and international criminal law generally, it is relevant to claims for judicial harmonization in many other areas regulated by international law, including the law of the sea, international human rights law, and international trade law.
Abstract: This Article defines the September 11 attack on the Pentagon and the World Trade Center as a non-isolated war-like attack undertaken against a sovereign state by individuals operating through a non-state actor. Although this means that the attack contains elements of both an armed attack and a criminal attack, this Article proposes that the attack should be treated as a criminal attack. As such, the appropriate legal response to it is one that emerges from the purview of the criminal law. However, this is not a matter to be left to domestic criminal law. Rather, the war-like nature of the attack suggests that it must be recognized as being an act of radical evil that lodges itself among the "most serious crimes of concern to the international community as a whole." Accordingly, it is to be addressed by international criminal law through a multilateral, cross-civilizational, open, and pluralist process. Such a process would: (1) more emphatically denounce the attack; (2) better deter future attacks by building anti-terrorist social norms in places where disaffected individuals join terror networks; (3) diversify international human rights law by including Islamic perspectives; and (4) avoid some of the national security concerns that proceeding in a U.S. forum would trigger. This Article therefore revisits the positions taken by the Department of Justice that terrorist trials take place within the U.S. federal court system, as well as the November 2001 Presidential Order permitting the creation of U.S. military tribunals for terrorists.
Abstract: This Review Essay of Philippe Sands' (ed.) From Nuremberg to the Hague (2003) explores a number of controversial aspects of the theory and praxis of international criminal law. The Review Essay traces the extant heuristic of international criminal justice institutions to Nuremberg and posits that the Nuremberg experience suggests the need for modesty about what criminal justice actually can accomplish in the wake of mass atrocity. It also explores the place of one person's guilt among organic crime, the reality that international criminal law may gloss over criminogenic conditions in its pursuit of individualized accountability, the possibility of group sanction for collective violence, and the complex relationship between international interventions and national legal institutions. In the end, this manuscript underscores the relevance of law to stigmatizing enemies of humankind while underscoring that the best way to bolster this relevance is through a sincere, and sustained, process of critique and reflection.
Abstract: A strikingly diverse number of actors create international environmental law through strikingly diverse processes of law-making. The dynamism of actors and law-making in international environmental law contributes to similar developments in international law generally. Traditionally, the number of actors with international legal personality - in other words, those actors who actually could make international law - is limited. States were primary among this group, followed by international organizations. In recent years, however, considerable international environmental law effectively has been generated by non-governmental organizations, networked communities of experts, and administrative secretariats of treaty organizations. Major international conferences of states serve important social constructivist functions in setting norms and building consensus. The expansion in the number of actors that, whether de jure or de facto, make international environmental law has diversified the sources of international environmental law, thereby enriching the process by which it is made. Sources of international law include treaties, custom, general principles of law, and - in a subsidiary sense - judicial decisions and the writings of eminent publicists. However, much of international environmental law is informally generated by "soft law" - namely that which is "not yet or not only law" - in particular when it comes to setting norms and defining agendas for formal law-making processes. International environmental law has seen a particularly dynamic element of soft law-making and, in this vein, has been an important trendsetter for the expanding content of international law generally. This article explores in greater depth the following two questions: (1) Who makes international environmental law? and (2) What are the sources of international environmental law?
Abstract: In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the 'war on terror' could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially enacted to implement the Geneva Conventions for U.S. officials. This Article explores triangulation among the Hamdan ruling, international criminal law, and the Geneva Conventions. My concerns are substantive as well as operational. In particular, I unpack: (1) Hamdan's substantive contribution to international criminal law; and (2) the operational value of prosecution and punishment by military commission as a mechanism to enforce Common Article 3 of the Geneva Conventions. Little thought has been given to the goal or purpose of punishing convicted terrorists. We have not assessed what we actually hope to achieve by punishing. Is it deterrence? Retribution? Incapacitation? Reintegration and reconciliation? To restitute those harmed? Or is the goal of punishment something more communicative and pedagogical - namely, what I call expressivism - to augment the moral value of law, stigmatize those who break it, and establish an authoritative public, and transnational, narrative regarding the heinousness of terrorist violence? We only can properly assess the role of prosecution and punishment as an enforcement mechanism of the Geneva Conventions if we first identify what, exactly, we hope to achieve by punishing breaches thereof. Based on my analysis of perpetrators of atrocity in other contexts, I develop an argument that the most plausible - although quite fragile - justification for punishing convicted terrorists, in this case al-Qaeda terrorists connected to the September 11 attacks in the United States and other wide-scale attacks against civilians, is the expressive justification. Accordingly, it makes sense to structure process and punishment in a manner conducive to obtaining this goal. I argue that the 2006 MCA, although better able to facilitate expressive penological goals than the commissions that had been struck down in Hamdan, still remains deficient in important regards. I also explore the broader question whether the Geneva Conventions, in particular Common Article 3 thereof, should apply to conflict against non-state actor terrorist groups. I develop a response that, for a variety of expressive reasons, there is value in having them apply, although care must be taken not to overestimate this value.
Abstract: This Article explores how and why national courts and traditional community institutions punish perpetrators of genocide in Rwanda. It forms part of a much broader research project that investigates the punishment of extraordinary international criminals generally. Thus far, published aspects of this project have analyzed the judgments and positive law of international legal institutions in order to present data on sentencing, diagnose shortcomings, and recommend reform. The data presented in this Article, which consists of an entirely original qualitative review of hundreds of genocide judgments of national institutions, represents the second stage of the project. This empirical review helps address a gaping lacuna in the English-language literature. It provides a basis to deeply interrogate the rationales of punishment of extraordinary criminals and the harmonization of customary law with the dominant meta-narrative of liberal legalism. These interrogations offer broader lessons with regard to the potential and limits of criminal trials for perpetrators of mass atrocity. These lessons from Rwanda's painful experiences are salient to a broad array of places currently subject to judicialization, from Sudan to Cambodia to Iraq, in particular the prosecution of Saddam Hussein.
Rwanda, genocide
Abstract: Although extraterritorial trials for human rights abusers certainly achieve some justice, this Article posits - through a case-study of post-genocide Rwanda - that the effects of such trials are circumscribed by the fact they may have little meaning among perpetrators and victims in post-conflict societies. This limited meaning particularly attaches to trials conducted extraterritorially through international tribunals as well as trials conducted in foreign national courts through the exercise of what loosely is called "universal jurisdiction." This circumscribed meaning results in these trials' having limited deterrence effects, although they may go some way to satisfying the deontological need to punish aggressors. Incommensurabilities may arise when the legal culture in which the trial is conducted contrasts with the legal culture of the post-conflict society. These incommensurabilities may reflect deeper divides between "us" in the West and "others" in the rest of the world. These divides are prompted by the fact that international human rights law as implemented through international tribunals is proffered as a putatively "universal" construction, but this may belie its perceived origins in Western legal norms. Moreover, those national courts exercising universal jurisdiction over human rights abuses generally are Western courts, and the subject matter of the jurisdictional exercise often are abuses in the developing world. Assuming the existence of some sort of international legal duty to prosecute systemic human rights abusers, then whatever meaning extraterritorial trials might convey could be enhanced if such trials are carefully constructed and take into account contextual elements such as local culture, law, and history. This way, trials may be geographically extraterritorial, but not as legally, culturally, spiritually, and socially extraterritorial. By way of prescription, this Article offers some preliminary insights relevant to the ongoing prosecutions of Taliban fighters and Al-Qaeda terrorists.
Abstract: This paper explores possible legal responses to the Taliban's "other" crimes - those inflicted against Afghans during Taliban rule. This criminality largely has been rendered invisible by virtue of the international community's focus on punishing the Taliban's support of transnational terrorists, in particular al-Qaeda. This invisibility is problematic given that carefully constructed prosecutions of these "other" crimes could play an important role in post-conflict reconciliation and national reconstruction in Afghanistan. Such reconciliation and reconstruction can legitimize a representative post-conflict state and curb terrorist recidivism.
Abstract: Article 5(1) of the Rome Statute provides the International Criminal Court (ICC) with jurisdiction over the crime of aggression, but does not define the crime. A Special Working Group on the Crime of Aggression, however, has made considerable progress in developing a definition of the crime as well as conditions for the exercise of jurisdiction. In 2008, and in anticipation of a Review Conference to be held in 2010, the Special Working Group circulated a Discussion paper that, in its Annex, proposes a definition of the crime of aggression by way of amendment to the Rome Statute. The definitional consensus that has emerged is grounded on the assumption that a narrow definition of aggression stands a more realistic chance of securing state approval. Three characteristics animate this definitional consensus and contribute to its narrowness: (1) that state action is central to the crime; (2) that acts of aggression involve interstate armed conflict; and (3) that criminal responsibility only attaches to very top political or military leaders. This Paper argues that, although there are pragmatic advantages to proceeding in this conservative manner, opportunity costs also arise. In response, this Paper suggests a gentle expansion in the scope of the crime of aggression, both in terms of the impugned acts as well as in terms of who can be prosecuted. It draws from two examples of crimes against the peace prosecutions in the wake of the Second World War (the Greiser and Sakai cases) that have received scant attention in the Special Working Group. The Paper also draws from the nature of contemporary threats to transnational stability, security, sovereignty, and human rights interests, many of which depart from the classic model of interstate armed conflict. The following sequence concerns me: (1) the Special Working Group proposes a narrow crime of aggression; (2) the Rome Statute is amended to include this narrow crime; (3) the Special Working Group packs up its tent; and (4) the conversation about what exactly aggression should proscribe simply loses momentum and ends. Such an outcome, which arises from a push to codify, might compromise the longer-term expressive value and effective legitimacy of the crime of aggression to future generations, especially in the developing world.
Abstract: This Paper reviews how international criminal law proscribes the conscription, enlistment, or use of children in armed conflict. This legal regime then is contrasted with the social reality of child soldiering, in particular as revealed by ethnographic research from Sierra Leone, the DRC, and northern Uganda regarding how children end up in armed conflict and what they do during conflict. Field research suggests that children exercise greater agency in enlisting in armies, fighting forces, and militias than international criminal law assumes; what is more, field research also suggests that, despite the existence of staggeringly coercive pressures, some children may exercise greater authorship over the violence they commit than international lawyers and human rights workers assume. An individual can be both a victimizer and a victim at the same time - a reality with which international criminal law remains queasy. Assessing the agency of child soldiers is a difficult task that requires great sensitivity, care, and nuance. It is considerably easier to prejudge ex ante that they have no responsibility than to examine ex post why, exactly, they join militias and then why, exactly, some among them commit terrible crimes. International criminal law, however, ought to be the subject of objective study and dispassionate inquiry. The soothing path that assuages collective sensibilities is not necessarily the best path to protect children from endemic violence, to safeguard and heal post conflict societies, or to promote the best interests of those children who commit international crimes. International criminal lawyers should encourage, instead of gloss over, the hard work and discomforting questions that should be addressed in order to reintegrate children who perpetrate grievous atrocity in a salutary, viable manner that dissuades their recidivism, ostracism, and marginalization. Atrocity trials for children are not a solution; neither, however, is an absence of any accountability mechanism.
International law, Criminal law, Atrocity trials, Child Abuse
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