Radical Dissents in International Criminal Trials

28 European Journal of International Law 1163 (2017)

Posted: 17 Jul 2017 Last revised: 19 Feb 2018

See all articles by Neha Jain

Neha Jain

University of Minnesota - Twin Cities - School of Law

Date Written: July 10, 2017

Abstract

International criminal law, for much of its history, has been a law characterized by dissents. However, international law scholarship has largely ignored the role of the dissenting opinion in shaping the discourse of international criminal law. This Article critically examines the nature and function of dissents at international criminal tribunals at a particularly crucial moment in the life of these courts, when the project of establishing accountability of mass atrocity through criminal trials is increasingly under attack. The Article argues that the dissenting opinion is a crucial legal device that can have a transformative potential in international criminal adjudication through its creation of a civic space for contestation that paradoxically shores up the legitimacy of the international criminal trial. To this end, it constructs a discrete category of dissenting opinions at international criminal courts: “radical dissents”. The content and rhetorical style of a radical dissent enables actors invested in the project of international criminal justice to use it as a vital dissentient voice both within and outside the courtroom. Agents who operate within the confines of the legal trial, such as defendants, lawyers, appellate chambers, and future judges, may channel its authority to challenge the idiom in which the majority judgment speaks. Likewise, the radical dissent could provide a legal language through which academics, victims, civil society, and other affected communities continue to grapple with constructing and coming to terms with events that defy human understanding.

Keywords: Dissent, International Criminal Courts, International Criminal Law, Legitimacy, Tokyo Trial, Pal, Judgment

Suggested Citation

Jain, Neha, Radical Dissents in International Criminal Trials (July 10, 2017). 28 European Journal of International Law 1163 (2017). Available at SSRN: https://ssrn.com/abstract=3000016

Neha Jain (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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