The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia

Recent efforts to develop and implement progressive models oftransitional justice have been significantly influenced by majordevelopments in the law concerning sexual violence in armedconflict. In particular, the International Criminal Tribunalfor the former Yugoslavia has pioneered accountability for sexualviolence against women in armed conflict. This article takesthe ICTY as a case study of how gender can structure the accountabilitymechanisms of transitional justice. The article analyses howlegal norms and practices instantiate and reiterate, ratherthan transform, existing hierarchical gender relations. It considersthe existing models of sexual violence as a criminal harm underinternational law, and then examines gendered patterns of legalpractice in ICTY prosecutions. To address this engendering oftransitional justice, the article produces a new model of theharm of sexual violence in conflict, suggests the developmentof a new international offence of sexual violence and generatesdifferent strategies for international prosecutions of sexualviolence.     

Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach, Nancy Amoury Combs

The field of transitional justice is entering a new phase bornof several decades of experience and a maturation of the practicaland theoretical engagement with the complex set of problemsinvolved in facing past atrocities. Guilty Pleas in InternationalCriminal Law: Constructing a Restorative Justice Approach focusesattention on the issue of guilty pleas in international criminallaw as an area of legal practice that merits additional attention,     

Review Article: International Distributive Justice

The literature on global justice contains a number of distinct approaches. This article identifies and reviews recent work in four commonly found in the literature. First there is an examination of the cosmopolitan contention that distributive principles apply globally. This is followed by three responses to the cosmopolitanism, – the nationalist emphasis on special duties to co-nationals, the society of states claim that principles of global distributive justice violate the independence of states and the realist claim that global justice is utopian and that states should advance national interest.     

Adaptive Justice in the Chinese Context: Law versus Commonsense

Under certain circumstances, law may come into conflict with commonsense, which by definition refers to “popular conceptions of right and wrong”, a conflict to which rescue comes a mechanism I conceptualise as “adaptive justice”, as it aims to adapt the law, in balance with other non-positive, but equally universal rules, to the circumstances at hand. It follows two propositions: (1) When law encounters or engenders difficulty during its legislation, application or interpretation, certain non-positive, universal rules will have to be introduced in order to make flexible the rigidity of written law; (2) the solution is an adaptive application of legal rules, rather than adherence to a literal reading of legal texts. In the context of the libertarian-communitarian debate on justice, this notion of adaptive justice may offer us a new angle, as it has an in-built focus on “methodological relationalism”, which by definition uses interpersonal relationship as the basic unit of analysis to decode human behaviour and values.     

Sex Trafficking: Trends,Challenges, and the Limitations of International Law

The passage of the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children in 2000 marked the first global effort to address human trafficking in 50 years. Since the passage of the UN Protocol international organizations, non-governmental organizations, and individual states have devoted significant resources to eliminating human trafficking. This article critically examines the impact of these efforts with reference to the trends, political, and empirical challenges in data collection and the limitations of international law. I argue that current international law disproportionately addresses the criminal prosecution of traffickers at the expense of trafficking victims’ human rights, and has therefore not yet reached its full potential in the fight against human sex trafficking.     

论刑事法的公正、功利价值

公正与功利是刑事法追求的两大价值目标。处理公正与功利关系应建立在两项原则基础之上 :一是刑事法各具体原则的运作都应以保障最低限度的公正与最低限度的功利为基础 ;二是公正与功利价值关系的定位因刑事法的内部关系不同而有异 ,在刑事实体法中 ,追求的是“功利优先 ,兼顾公正” ,而在刑事程序法中 ,则是“公正优先 ,兼顾功利”。     

Transitional Justice and Its Discontents: Socioeconomic Justice in Bosnia and Herzegovina and the Limits of International Intervention

ABSTRACT

The incorporation of socioeconomic concerns into transitional justice has traditionally, as a result of prevailing liberal notions about dealing with the past, been both conceptually and practically difficult. This article demonstrates and accounts for these difficulties through the case of Bosnia and Herzegovina, a country which has been characterized by a complex transition process and a far-reaching international intervention, encompassing transitional justice and peacebuilding as well as political and economic reforms. Examining the limits of international intervention in Bosnia and the marginalization of socioeconomic justice issues, the article analyses the events surrounding the protests that broke out in February 2014, and the ensuing international engagement with the protest movement. Faced with a broad-based civic movement calling for socioeconomic justice, the international community struggled to understand its claims as justice issues, framing them instead as problems to be tackled through reforms aimed at completing Bosnia’s transition towards a market economy. The operation of peacebuilding and transitional justice within the limits of neoliberal transformation is thus instrumental in explaining how and why socioeconomic justice issues become marginalized, as well as accounting for the expression of popular discontent where justice becomes an object of contestation and external intervention.     

Violence,Nonviolence, and the Effects of International Human Rights Law

Under what conditions are individuals more likely to approve of human rights abuses by their governments? While various theoretical expectations have been offered about public approval of repression, many of them have not been directly tested. We analyze the effects of differing opposition tactics, differing government tactics, and legal constraints on approval of repression through a series of survey experiments in India, Israel, and Argentina. Our results indicate that violent action by opposition groups consistently increases support for government repression. In the context of contentious politics, we find that the effects of international law vary by national context. While our respondents in India were less likely to approve of their government when told the government violated international law, the same information likely increased approval of the government in our Israel experiment. The findings provide insights into the microfoundations of existing theories and suggest areas for theory refinement.     

议国际法学之方法论

国际法学的研究方法要依据其所调整的法律关系和研究对象的特点有针对性的选择,不仅要借鉴国际关系、政治学、经济学等社会科学知识,还要以相关学科的自然科学知识为基础,综合运用逻辑思维和实证分析、自然分析等方法来研究问题。