International criminal justice: reflections on the past and the future

While Nuremberg constitutes a watershed in the evolution of international law with its establishment of the fundamental principle of individual criminal responsibility under international law it has not left much else by way of precedent for the subsequent international criminal tribunals. The adoption of UN Security Council Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia, and Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda, set the groundwork for a new model of hybrid tribunals, with the establishment of the Special Court for Sierra Leone in 2002, the Extraordinary Chambers in the Courts of Cambodia in 2006, and the Special Tribunal for Lebanon in 2007. Perhaps one of the greatest legacies of these ad hoc and hybrid courts and tribunals has been paving the way for the establishment of a permanent international criminal court. However, they have also brought about the development of international criminal law through judicial interpretation, elaborating, inter alia, the elements of the crime of genocide as detailed in the 1948 Genocide Convention, the judicial recognition of the concept of joint criminal enterprise and the principle that national arrangements for amnesties in respect of international crimes are no bar to prosecution for such crimes at an international tribunal. In view of the completion strategies of the ad hoc Tribunals, as well as of the SCSL, this article delves into some of their legacies and outlines some of the difficulties and challenges they have faced, while identifying areas of best practice in order for the newly‐operational International Criminal Court to avoid repeating the mistakes of the past or even reinventing new wheels.     

Balancing Security and Democracy, and the Role of Expertise: Biometrics Politics in the European Union

What is the relationship between security policies and democratic debate, oversight and rights? Does coping with security threats require exceptions to the rule of law and reductions of liberties? The inquiry that follows tries to answer such questions in the context of the European Union and takes the case of biometric identification, an area were security considerations and the possible impact on fundamental rights and the rule of law are at stake. Some hypotheses are explored through the case study: “securitisation” and “democratisation” are in tension but some hybrid strategies can emerge; the plurality of “authoritative actors” influences policy frames and outcomes; and knowledge is a key asset in defining these authoritative actors. A counter-intuitive conclusion is presented, namely that biometrics, which seems prima facie an excellent candidate for technocratic decision-making, sheltered from democratic debate and accountability – is characterised by debate by a plurality of actors. Such pluralism is limited to those actors who have the resources – including knowledge – that allow for inclusion in policy making at EU level, but is nevertheless significant in shaping policy; it explains the central role of the metaphor of balancing security and democracy, as well as the “competitive cooperation” between new and more consolidated policy areas. The EU is facing another difficult challenge in the attempt at establishing itself as a new security actor and as a supranational democratic polity: important choices are at stake to assure that citizens’ security is pursued on the basis of the rule of law, respect of fundamental rights and democratic accountability.     

Sentencing Contempt of Court in International Criminal Justice: An Unforeseen Problem Concerning Sentencing and Penalties

International criminal tribunals, like any criminal court, havebeen faced with offences against the administration of justice,such as contempt of court. The power of the UN ad hoc Tribunalsto punish these offences has raised problematic issues mainlyconcerning respect for the principle of legality (includingfrequent amendments to contempt-provisions, and the substantialincrease of the sentencing frame for contempt within only afew years). This article seeks to clarify some aspects concerningapplicable penalties and sentencing for contempt of court throughthe examination of the case law of the ad hoc Tribunals andthe Special Court for Sierra Leone, discussing its implicationsfor the principle of legality. It is argued that the processfollowed in sentencing contempt is in many aspects not dissimilarto the traditional judicial practice of the Tribunals concerningpurposes of punishment, aggravating and mitigating circumstancesand guilty pleas.     

Judicial Review of European Anti-Terrorism Measures—The Yusuf and Kadi Judgments of the Court of First Instance

Abstract:  In the Yusuf and Kadi judgments of 21 September 2005, the Court of First Instance endorsed the Community practice of sanctioning individuals blacklisted by the United Nations (UN). It accepted that the Community uses its competence to adopt state sanctions in combination with Article 308 EC to freeze the assets of civil persons, including European citizens. The court also reduced its jurisdiction to a basic scrutiny of whether jus cogens was violated. The Court of First Instance's decisions can be criticised on various grounds. First, the application of these Articles is contrary to the wording of the Treaty and the case-law of the European Court of Justice (ECJ). Further, as a consequence of the Court of First Instance's judgments, decisions of the UN Sanctions Committee become the supreme law within the EU, provided they meet the requirements of jus cogens as defined by the Court of First Instance. In addition, the individual is deprived of all fundamental rights guaranteed under European law.     

为判例制度正名——关于构建我国判例制度的思考

我国当前并无明确的判例制度,但实际上存在着＂近似判例制度＂,如案件请示批复制度是有实无名的判例制度,案例选编公告制度是心照不宣的判例制度,案例指导制度是欲言又止的判例制度,这些制度有诸多不足。随着社会的发展和司法实践的需要,我国应当建立判例制度。建立判例制度有利于维护法律的稳定性,树立法律的权威;有利于矫正我国的近似判例制度,树立司法的权威;有利于提高我国个案审判和判决书的质量,树立法官的威望。我国构建判例制度的基本思路应当是,使判例制度与法律方法相结合,使判例制度与司法解释制度相结合。我国应当构建一个由最高人民法院和审案的人民法院共同制作判例、由最高人民法院发布判例的判例制度,这是构建我国判例制度的关键。     

Immigration and its Imperatives

Conflict and compromise have marked domestic immigration and asylum law in many countries. In examining whether these patterns will be replicated at the level of the EU, this article proposes an alternative method for analysing immigration law and its politics, framing them within the complex interaction of the interpretations by key actors of the imperatives of the State, the EU, and the legal sphere. An account of the functional, normative and polity legitimating imperatives, their specific manifestations in different spheres, and their interaction in the field of immigration and asylum is sketched. This politically-grounded analysis explains more clearly the structure of conflict and compromise that characterises this sphere, illuminates the judicial strategies in this field and enables us to speculate upon the probable future of EU immigration and asylum law.     

‘All About That Bass’? Is non‐ideal‐weight discrimination unlawful in the UK?

People of non‐ideal‐weight (overweight or severely underweight) are subjected to discrimination, in the workplace and elsewhere, based on attitudinal assumptions and negative inferences from their membership of a group, such as that they are insufficiently self‐motivated to make good employees. But is that discrimination unlawful in the UK? The Equality Act 2010 offers only a very tenuous route for protection, because the Act is based largely on a ‘medical model’ of disability. EU law, which embraces a ‘social model’ of disability, drawing from the UN Convention on the Rights of Persons with Disabilities, offers more, at least in theory. But the mechanisms for enforcing individual EU law rights mean that entitlements in EU law are likely to be enforceable in practice only against state employers. This situation leaves a gap in the law which is remediable only by legislative reform.     

Challenging EU constitutional law: The Italian Constitutional Court's new stance on direct effect and the preliminary reference procedure

This article seeks to examine the relationship between EU law and the Italian legal order in light of the recent Italian Constitutional Court (ICC)’s jurisprudence attempting to redefine EU core principles. When fundamental rights are at stake, three assumptions are challenged: the determination of direct effect shall be a prerogative of the ECJ; EU directly effective provisions entail the disapplication of conflicting national law; judges have the discretion to refer preliminary references to the ECJ where a clarification on EU law is needed. The contribution argues that the judicial search for a balance between sovereignty and supranationality is undermined by the ICC's new resistance to the well‐established EU jurisprudence. In that respect, the paper posits that the ICC's activism is the result of an unjustified ‘argumentative self‐restraint’ of the ECJ vis‐à‐vis the evolution of EU foundational principles.     

刑事司法国际准则对我国法治建设的价值思考

刑事司法国际准则是联合国及其下属机构为各国刑事诉讼程序所建立的基本权利保障标准,准则产生的理论基础是自然法思想,现实动因是人们对二战的反思以及人权保障运动的国际化。学习、借鉴准则对于我国法治建设具有重大的意义,从宏观层面而言,准则有助于促进我国司法制度的法治化建构;从微观层面而言,准则有助于实现个案的审判正义。     

The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited

This article analyzes how the judicial politics sparked by the European Union's (EU) legal development have evolved over time. Existing studies have traced how lower national courts began cooperating with the European Court of Justice (ECJ) to apply EU law because this empowered them to challenge government policies and the decisions of their domestic judicial superiors. We argue that the institutional dynamics identified by this ‘judicial empowerment thesis’ proved self‐eroding over time, incentivizing domestic high courts to reassert control over national judicial hierarchies and to influence the development EU law in ways that were also encouraged by the ECJ. We support our argument by combining an analysis of a dataset of cases referred to the ECJ with comparative case study and interview evidence. We conclude that while these evolving judicial politics signal the institutional maturation of the EU legal order, they also risk weakening the decentralized enforcement of European law.     

Independence of the Court of Justice of the European Union: Unchecked Member States power after the Sharpston Affair

The Court of Justice of the European Union (CJEU) is the apex of the EU legal order, and is the supreme arbiter of EU law. For decades, it has delivered judgments, collectively shaping European integration and ‘integration through law’. It has undoubtedly been an authoritative leader in entrenching a European judicial culture, and has benefited from the cardinal principle of judicial independence enshrined in the EU Treaties, which in turn, it has insisted on being upheld as regards national courts. Questions have rarely arisen, however, about judicial independence of the CJEU. The Sharpston Affair of 2020–2021 opened the door to questioning such judicial independence. Is the CJEU at the mercy of the Member States? If so, what are the consequences for the EU legal order? This article reflects on the judicial independence of the CJEU, and offers reflections on how it can be preserved in the future.     

Light Treatment of a Complex Problem: The Law of Self-Defence in the Wall Case

In its recent Wall Opinion, the International Court of Justicegave rather short shrift to Israel’s claims that the constructionof the wall could be justified as an act of self-defence inthe sense of Article 51 United Nations Charter. This articleassesses the Court’s approach and places it in the broadercontext of ICJ pronouncements on the use of force. It suggeststhat the Court failed to appreciate the complex legal problemsto which Israel’s claim gave rise, in particular the problemof self-defence against attacks by non-state actors. It showsthat the Court’s restrictive understanding of self-defence,while following the 1986 merits judgment in the Nicaragua case,is difficult to bring in line with modern state practice, andincreases the pressure to admit other, non-written, exceptionsto Article 2(4) of the UN Charter.     

A Court Quietly Rewrote the Federal Pesticide Statute: How Prevalent is Judicial Statutory Revision?

Author's Note: My thanks to Lloyd Musolf, Paul Sabatier, Martin Shapiro, John M. Thomas and three anonymous reviewers for helpful comments on an earlier draft. I also acknowledge the generous support of the Energy and Environmental Policy Research Program at the Institute of Ecology, University of California at Davis.
The resurgence in policymaking by American courts has revitalized the longstanding debate over judicial activism. Yet much of that debate addresses judicial interpretations of the Constitution, as distinct from statutory law. When interpreting vague statutes, judges can make inconspicuous but fundamental policy reforms. This paper discusses the political circumstances encouraging this form of judicial intervention. The enormous subtlety in judicial capabilities is illustrated. The paper concludes that by focusing primarily on obvious features of court activism, the contemporary debate may be seriously under representing the extent of judicial contributions to our fragmented form of governance.     

The roles of non-state actors in climate change governance: understanding agency through governance profiles

Globalization processes have rendered non-state actors an integral part of global governance. The body of literature that has examined non-state actor involvement in global governance has focused mainly on whether and how non-state actors can influence states. Less attention has been paid to the comparative advantages of non-state actors to answer questions about agency across categories of non-state actors, and more precisely what governance activities non-state actors are perceived to fulfil. Using unique survey material from two climate change conferences, we propose that different categories of non-state actors have distinct governance profiles. We further suggest that the different governance profiles are derived from particular power sources and that agency is a function of these profiles. The study thereby contributes to a strand in the literature focusing on the authority of non-state actors in climate governance and broadens the methodological toolkit for studying the “governors” of global governance.     

Judicial Interpretation or Judicial Activism? The Legacy of Rationalism in the Studies of the European Court of Justice

During the last two decades, law as a factor in European integration has attracted great scientific interest. Numerous studies and theoretical analyses have been published that have undertaken the task of examining and explaining the role of law in the progress of integration. The European Court of Justice (ECJ) in particular, as Europe's judiciary body, draws much attention in this context. However, the inflexible, mechanistic and universalistic notion of rationality that these works employ leads to serious misinterpretations and unjustified criticism regarding the role the ECJ takes in the course of integration. Within the frameworks of contemporary approaches, the Court is perceived as just one more political player among other actors and institutions, able to shape the EU in the pursuit of its own rational interests. By outlining the theoretical concept of context rationality, this article shows that the logics of law and judicial lawmaking are based on a non‐trivial and non‐political rationality and cannot be understood appropriately without paying attention to the context of European law.     

The Consequences of Kadi: Where the Divergence of Opinion between EU and International Lawyers Lies?

The divergence of opinion between EU and international lawyers as to the consequences of the Kadi/Al Barakaat judgment is likely to remain for the foreseeable future. While international lawyers focus their analysis on the constitutional role of the UN Charter in international law, EU lawyers seek to assert the autonomy and primacy of the EU treaties. The aim of this article is to analyse where the divergence between the two perspectives can be found. The judgment of the European Court of Justice cannot be interpreted as questioning the authority of the Security Council in discharging its duties for the maintenance of international peace and security. The consequences of the General Court's case‐law as regards the EU autonomous list of terrorists should be borne in mind when faced with the implications of Kadi/Al Barakaat. It is not justified that the level of protection to the individuals or entities affected by targeted sanctions should depend on the legal framework in which the restrictive measures have been adopted (UN or EU), or on the margin of discretion left to the EU Member States by the Security Council.     

论根本违约的判定标准

根本违约制度的核心认定在于把握它的构成。在比较两大法系有代表性的国家立法、司法实践以及国际立法的基础上,结合我国合同法的理论与实践,对我国如何借鉴根本违约制度进行了简要的评述。     

Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study—the European Arrest Warrant

Abstract: The European arrest warrant (EAW) is the first and most striking example of the extensive judicial cooperation in criminal matters that is beginning to take place in the European Union. Replacing traditional extradition between EU member states, including the ten accession countries after May 2004, it will operate on the basis of mutual recognition of judicial decisions, thus taking extradition decisions out of the hands of politicians. It rests on the presumption that criminal justice systems are equivalent throughout the EU and that the rights of the defence, in particular, are safeguarded adequately and in a comparable way EU‐wide. However, before the EAW has even been implemented, a number of practical problems are beginning to emerge, in particular in relation to the protection of individual rights and legal certainty in the European judicial space. The way in which these problems are tackled will be a litmus test of the respect for fundamental rights across the EU in the field of justice and home affairs. This article highlights the problems inherent in the rapid development of the principle of mutual recognition and suggests ways in which these problems can be addressed allowing for full protection of fundamental rights within a fully functioning European area of freedom, security, and justice. The EAW will be used to illustrate the prominent features of the emerging landscape of judicial cooperation in criminal matters, providing as it does the most radical example of developments in this field so far and their implications for fundamental rights.     

区别而论的责任体系：《鹿特丹规则》履约方制度的引入——兼论《中华人民共和国海商法》的选择

联合国大会2008年12月通过的《鹿特丹规则》引入了全新的主体制度,即履约方制度。在面对困扰中国海事司法实践已久的港口经营人法律地位问题时,有学者认为履约方制度恰能解决该问题;在当前修改《中华人民共和国海商法》（简称《海商法》）的背景下,海商法学界也出现了呼吁将履约方制度引入《海商法》的观点。但是,履约方制度并不能解决港口经营人的全部问题,解决《海商法》现有问题也并非只能依赖履约方制度的引入。     

Localizing Gender Equality after Conflict

Debates have grown in recent years concerning the realistic utility and application of international human rights law to a local context. Since 2000, the United Nations Security Council has issued eight Women, Peace, and Security resolutions geared toward promoting gender equality measures in conflict prevention during conflict and post-conflict settings. The first of these resolutions, United Nations Security Council Resolution (UNSCR) 1325, has been adopted by a number of UN Member States through National Action Plans (NAPs), which provide a framework and roadmap for integrating gender equality measures at the domestic level. Although NAPs were once considered promising, they have largely been unsuccessful.

By examining the implementation challenges facing other gender equality measures and localization programs that seek more effective implementation of the Women, Peace, and Security Resolutions, the following argues that a bottom-up approach rather than a top-down approach must be considered more seriously by international actors supporting implementation and integration of international human rights law, not only for the obvious reason that it emboldens local agency in the adoption process, but also because it is likely to produce outcomes that are meaningful and sustainable for the communities most affected by these provisions.

As such, continued emphasis on change that emanates from the top down in a given country often ignores the reality that gender equality measures in international human rights law are often perceived by governments and civil society actors as a serious disruption to domestic gender norms. Sole reliance on state institutions to deliver these commitments is flawed because it fails to recognize the necessary dialog and contestation among various stakeholders concerning the role of external norms in a local context.