On the Sources of International Criminal Law

In their efforts to establish a quite original system of proceduraland material rules of international criminal law, by means ofthe so-called "judge-made law", the two ad hoc Tribunals forthe Former Yugoslavia and Rwanda hold a peculiar approach tothe sources of that law. The most controversial of all is theirconcept of "customary law". This paper is an attempt to clarifythe meaning and scope of these sources mainly from some aspectsof the respective rules adopted in the 1998 Rome Statute. Itis also a continuance in this author's research on the sourcesof public international law.     

On the Use of Criminal Law Notions in Determining State Responsibility for Genocide

On the face of it the 1948 Convention on Genocide appears tobe a treaty that on the one hand obliges contracting statesto criminalize and punish genocide in their domestic legal systemsand, on the other, arranges for interstate judicial cooperationfor the repression of genocide. The International Court of Justice(ICJ), in the Bosnia v. Serbia judgment, has instead held thatthe Convention, in addition to providing for the criminal liabilityof individuals, also imposes on contracting states as internationalsubjects a set of obligations (to refrain from engaging in genocide,to prevent and punish the crime, and also to refrain for allthose categories of conduct enumerated in Article III: conspiracy,incitement, attempt, complicity). This approach raises two questions:(i) is it warranted so to broaden states' responsibility? (ii)when applying such Article III categories to state responsibility,should an international court such as the ICJ that pronounceson interstate disputes rely upon criminal law categories toestablish whether a state incurs responsibility for conspiracy,complicity, and so on? Or should it instead forge autonomouslegal categories better suited to state responsibility? Theauthor sets forth doubts about whether it is appropriate totranspose criminal law categories to the corpus of internationallaw of state responsibility. In particular, his misgivings relateto the category of ‘state complicity in genocide’as set out by the Court: once the Court decided to transplantthis criminal law category to state responsibility, arguablyit should have relied upon the rigorous concept of complicity,as derived by international criminal courts from case law andthe relevant practice of states, rather than apply a notionthat finds no basis in international criminal law, in comparativecriminal law or in state practice.     

Transnational activities of Chinese crime organizations

This study investigates the major pockets of activity of Chinese criminal groups from 2000–2003, throughout the world except for Mainland China, Hong Kong, Macau, and Taiwan. The main geographical regions of such activity are Australia, Europe, Japan, Latin America, North America, Russia, South Africa, and Southeast Asia. The report notes the participation of such groups in all major types of crime, including trafficking of human beings and various commodities, financial crimes, extortion, gambling, prostitution, and violent crimes. For the purposes of this report, the term “Chinese” refers to individuals of purely Chinese ethnic origin living in any part of the world. The criminal groups described vary in size and degree of structure; they include syndicates, triads, gangs, and ad hoc combinations of organization members and non-members. Because of this variety, an increasing tendency toward ad hoc activity, and the lack of specificity in many open sources, the term “group” is used when a criminal activity is not attributed to a specific type of organization. The report's sources are several recent monographs, journal articles on various aspects of such crime in the geographical regions where it occurs, and Internet reports by journalists and law enforcement agencies. Some sources published prior to the time period covered by the report have been used to provide background and establish long-term trends.     

Effet utile and the (re)organisation of national judiciaries: A not so unique institutional response to a uniquely important challenge?

The current repurposing of the principle of effet utile of European Union law can be found in the revolutionary steps taken by the Court of Justice in its application of Article 19 TEU. The implicit goal of this recent body of case-law is to equip national judges with the tools to resist domestic judicial reforms that affect their freedom to adjudicate independently. Considering Simmenthal to Unibet, Associação Sindical dos Juízes Portugueses to the latest case-law relating to the organisation of national judiciaries, this article contends that, while the case-law on judicial independence is unprecedented, the Court of Justice has gone to great lengths to ensure that the developments in EU law precipitated by its rulings are grounded in established doctrine. They follow a line of case-law that builds on the principle of primacy of EU law and the obligation to guarantee the effectiveness of EU law in the domestic legal order. Further, the current trajectory is for Article 19 TEU to form the operational basis of review of any judicially minded reforms, whether they be organisational (Article 19 TEU, together with Article 47 CFREU), limit actually or potentially the freedom for dialogue between national courts and the Court of Justice (Article 19 TEU together with Article 267 TFEU and Article 47 CFREU) or where they reduce the protection of the value of the rule of law (Article 19 TEU, Article 2 TEU, Article 49 TEU and Article 47 CFREU), with potential implications for the effective application in EU law of the principle of mutual trust.     

A fundamental attribution error? Rethinking cognitive distortions†

The notion of ‘cognitive distortion’ has become enshrined in the offender treatment literature over the last 20 years, yet the concept still suffers from a lack of definitional clarity. In particular, the umbrella term is often used to refer to offence‐supportive attitudes, cognitive processing during an offence sequence, as well as post‐hoc neutralisations or excuses for offending. Of these very different processes, the last one might be the most popular and problematic. Treatment programmes for offenders often aim to eliminate excuse‐making as a primary aim, and decision‐makers place great weight on the degree to which an offender “takes responsibility” for his or her offending. Yet, the relationship between these after‐the‐fact explanations and future crime is not at all clear. Indeed, the designation of post hoc excuses as criminogenic may itself be an example of fallacious thinking. After all, outside of the criminal context, post hoc excuse‐making is widely viewed as normal, healthy, and socially rewarded behaviour. We argue that the open exploration of contextual risk factors leading to offending can help in the identification of criminogenic factors as well as strengthen the therapeutic experience. Rather than insist that offenders take “responsibility” for the past, we suggest that efforts should focus on helping them take responsibility for the future, shifting the therapeutic focus from post hoc excuses to offence‐supportive attitudes and underlying cognitive schemas that are empirically linked to re‐offending.     

Unblocking the Digital Economy Act 2010; human rights issues in the UK

Through an example of a study utilizing the case-law research method, this paper critically assesses whether taking into account both the findings of Mr La Rue (the United Nations Rapporteur on Human Rights) as well as some Court of Justice of the European Union's (CJEU) case-law, website blocking could be implemented in a way which is compatible with the European Convention on Human Rights (ECHR), in particular, with Article 10. Drawing upon, inter alia, Ofcom site blocking review, sections 17 and 18 of the Digital Economy Act 2010 (DEA), section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), and some independent expert evidence, this paper's major argument is that in view of the CJEU SABAM v Scarlet and SABAM v Netlog, the UK government's decision to repeal the website blocking provisions of the DEA appears appropriate. The paper examines the findings of Fox v BT. It contrasts such findings with the CJEU's case-law and in light of the incompatibility of any website blocking measure with the cumulative three-part test set out in the United Nations Rapporteur on Human Rights discusses a number of implications. It concludes that given that the implementation of content blocking systems, such as Cleanfeed is likely to result in general monitoring being carried out; the UK government could possibly be in breach of EU law, namely, Article 15(1) of Directive 2000/31.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

The repentant defendant and the potential of international criminal justice

ABSTRACT

Repentant defendants are a more common feature of the international criminal trial than commonly thought, and offer interesting opportunities to conceptualize the possibility of restorative justice within what is otherwise a conventionally retributive framework. Repentance may arise at different stages of the trial and is an inherent part of the assessment at the plea bargain and sentencing stages. It must be understood as a particular performance from the accused, one that individualizes guilt and performs the sort of moral agency on which international criminal law is otherwise premised. Its force lies potentially in its power to break down some of the constitutive dichotomies of international criminal justice, including those between perpetrator/victim, international/domestic, and retributive/restorative justice. One needs to account, however, for the potential ambiguity of repentance and the fact that it may be subtly exonerating, as well as the fact that international criminal tribunals have reasons to encourage it that have nothing to do with restorative justice. Only if the sincerity of repentance can be ascertained and if it can be addressed to victims may the restorative potential of international criminal justice be realized.     

Damaska and the Faces of International Criminal Justice

Mirjan Damaka 's scholarly publications provide important insightsfor the analysis of systems of criminal justice at the internationallevel. This is particularly true for his major book: The Facesof Justice and State Authority – A Comparative Approachto the Legal Process. The book develops ideal types, or models,of the structure and the function of government. As far as thestructure of government, the ideal types of hierarchical andcoordinate officialdom are contrasted with one another. Withregard to the function of government in society, two other mutuallyexclusive ideal types are developed: the ideal type of the purelyreactive state and that of the purely activist state. In thepurely reactive state all state activities are essentially aform of dispute resolution between individual citizens. Consequently,all proceedings take the shape of a contest between two parties.In the reactive state, on the other hand, all law is an expressionof state policies. This entails that all proceedings are essentiallyan official inquiry enabling the state to implement its policies.The four ideal types call for several observations, one of thembeing that, at the international level, there is no authoritythat can be compared to a state. Setting up international criminal courts requires choices withregard to the structure and function of authority. Internationalhuman rights instruments provide no guidance as to the natureof the choices to be made. In particular, they do not indicatewhether the legal process should be structured as a contestbetween two parties or as an official inquiry. The same is truefor empirical evidence. An analysis of the structures of authority in internationalcriminal courts reveal that they represent hybrids of the hierarchicaland the coordinate ideal types of officialdom. The fact thatthese courts are unitary courts has a profound effect on evidentiaryarrangements. The most important issue raised by the exposition of ideal typesof The Faces of Justice concerns the relationship between thegoals of international criminal justice and the appropriatelegal process to serve their realization. Goals of a conflict-solvingnature are best served by a legal process structured as a contestbetween two parties and goals related to the implementationof policies by a legal process structured as an official inquiry.It is therefore essential to determine what goals are beingpursed by international criminal courts. One may distinguishhere between goals that international systems of justice mayor may not have in common with national systems of criminaljustice. The pursuit of the traditional goals of criminal justicecommon to international and national systems of justice doesnot provide compelling reasons to prefer either a contest modelor an inquest model of the legal process. This is different,however, for the idiosyncratic goals of international criminaljustice that set apart international systems of criminal justicefrom national systems. The pursuit of these goals makes it desirablethat historical facts are established as accurately as is possiblein the given circumstances. They are, therefore, best servedby a legal process that takes the shape of an official inquiry.In the hybrid type of procedure adopted by the ICTY there isinsufficient clarity about the procedural status of the peculiargoals of international criminal justice as well as about theuse of procedural means to pursue them. This entails that itis not really possible to determine whether this hybrid representsa success. Hybrid types of procedure cannot truly exist withoutadopting a view with regard to the impartiality of judges thatis inspired by standards enshrined in international human rightsinstrument rather than those that are characteristic for thelegal process shaped as a contest between two parties.     

Restorative Justice and Collective Responsibility: Lessons for and from the Rwandan Genocide

Genocide struck Rwanda in 1994. Since then, national and international trials have endeavored to promote reconciliation, deterrence, peace, justice, and human rights. This article posits a disconnect between these trials and the attainment of their avowed goals. This disconnect emerges in part from the influential agendas of international lawyers who equate selective criminal prosecution with the "rule of law" and espouse criminal prosecution as the preferred and uniform response to mass atrocity. Creating a presumption in favor of criminal prosecution has dampened the need to explore whether such trials actually are suitable for the particular afflicted society. A socio-legal analysis suggests that Rwanda is precisely a place where constructed notions of what "rule of law" ought to be are supplanting the need to implement reconstructive policies that may be best for Rwanda. In particular, the populist nature of the Rwandan genocide, coupled with the vast level of victimization, suggest that a shame-based restorative approach may be more successful in promoting reconciliation, deterrence, and peace than the guilt-based retributive approach currently in vogue. This article argues that, when the law blames occurrences of genocidal evil largely on the existence of some evil people, it obscures the fact that so many people, to varying degrees of complicity, are required for this evil to result in so many deaths.     

English Prosecutions: Twenty Years of Changing Institutions and Values

Twenty years ago England had a prosecutorial system founded upon traditional values. In 1986, a Crown Prosecution Service founded upon the values of modern rationalized bureaucracy will be introduced. In 1966, English prosecutions were overwhelmingly police conducted, often without legal assistance. By the mid-seventies, a majority of police forces had created ad hoc, non-statutory prosecuting solicitors departments. In 1986, a statutory professional prosecuting national bureaucratic service independent of the police will replace the traditional prosecutorial structures. This twenty-year change provides an excellent example of a Weberian movement from traditional to bureaucratic institutions and has enormous implications for further change in remaining traditionally based English criminal justice institutions.     

HOW JUDGES THINK ABOUT RACIAL DISPARITIES: SITUATIONAL DECISION‐MAKING IN THE CRIMINAL JUSTICE SYSTEM*

Researchers have theorized how judges’ decision‐making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge's own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws. We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision‐making in organizational contexts.     

International Economic Criminal Law

This inquiry explores the question of transnational companies’ criminal liability for international crimes, reviewing the current state of research in the field of international economic criminal law, a discipline that hitherto has received only scant analysis. Following some preliminary conceptual remarks (I.), the forms of corporate participation in such crimes (II.) and the supranational and national practice since Nuremberg are presented. This practice reveals a clear trend towards corporate liability, albeit represented by leading company staff. For this reason, and because legal persons (companies) ultimately act through natural persons (their staff), their liability (IV.) cannot be convincingly established on a purely collective basis – in the sense of a pure organisation model (IV. 4.1.) – but only on the basis of the attribution model, namely as a derivative corporate liability based upon supervisory or organisational culpability (IV.4.2.). The attribution model’s individual approach – or, to use procedural terms, the individualistic “trigger” for the prosecution of companies – finally brings us to the well-known forms of criminal participation (V.), with liability for complicity in particular coming into question. All in all, the essay concludes (VI.), we should not expect too much of (international) criminal corporate liability. Here, as in many other areas, criminal law can only have a (limited) preventive effect as part of a holistic approach.     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.     

论共犯关系的脱离——与共犯中止区分为视角

共犯关系脱离理论是源于域外的一项重要制度,无论是在大陆法系的德国日本,还是在英美法系的美国英国,在其刑法理论中均积极的研究这一制度,并将其作为共犯理论的重要问题。共犯脱离理论与刑法中的共犯中止理论虽有某些相似之处,但是这一全新的制度毕竟不同于共犯中止理论。如果能在我国确立这一制度,有利于实现处罚的均衡、发挥刑罚个别化机能、实现刑罚的目的等诸多机能。     

Legal Aid,Self-Representation,And The Crisis At The Hague Tribunal

The unfolding of the case of Prosecutor v. Vojislav ŠeŠelj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) has been dramatic and more than a little chaotic. The author argues that it is diagnostic of a broader crisis at the Tribunal. As an experiment in international justice, the ad hoc tribunal model has proved to be expensive and slow, but on several points also procedurally arbitrary, intellectually unconvincing, and vulnerable to improper political considerations. These problems have attained a critical mass in ŠeŠelj’s case, as illustrated here. The accused ŠeŠelj, an ultranationalist politician and former paramilitary leader, has vowed to bring the Tribunal to its knees. He is self- represented at trial. This privilege was twice reaffirmed in 2006 by the ICTY Appeals Chamber, having been twice revoked by a bench of trial judges. In 2007, the new pre-trial judge in the case (now presiding judge), Jean-Claude Antonetti, declared that a self-represented accused who can prove indigence is entitled to legal aid. He ordered the Registrar of the Tribunal to pay ŠeŠelj’s defence expenses from the Tribunal’s legal aid budget if ŠeŠelj could prove his indigence. The author argues that while there is good reason to disburse legal aid funds to an indigent accused who has been granted privileges of self-representation, this entitlement was not convincingly explained by Antonetti. Moreover, ŠeŠelj’s destructive aims were improperly set aside by Antonetti in reaching his decision on the public financing of his defence. The current situation, which represents the combined effort of the Appeals Chamber and Antonetti, allows ŠeŠelj to bully participants in the proceedings, issue thinly veiled threats to prospective witnesses and the public at large, and bend the trial procedure to the requirements of his political populism. The poor handling of this case by the Tribunal as a whole calls into question the ad hoc tribunal model of international criminal justice. In the period 2003–2007, the author was a legal advisor to ICTY trial judges, working for a short time on the Vojislav ŠeŠelj case prior to its transfer to Judge Antonetti.     

The impact of international human rights norms—a “law undergoing evolution”

Abstract

In this paper, the author outlines the history of, and reasons for, the growing impact of international human rights jurisprudence upon the work of judges in New Zealand, Australia, England and elsewhere in the Commonwealth of Nations. Formerly, international and domestic law were virtually entirely separate. But now, there is increasing legal authority to support the use of international human rights jurisprudence in domestic judicial decision‐making. It can be done in the application of constitutional or statutory provisions reflecting universal principles stated in international treaties. But, according to the Bangalore Principles, it can also be done where there is a gap in the common law or where a local statute is ambiguous. The judge may then fill the gap or resolve the ambiguity by reference to international human rights jurisprudence which will ensure that domestic law conforms, as far as possible, to such principles.

In its decision in Tavita, the New Zealand Court of Appeal declared this to be “a law … undergoing evolution”. The author outlines some of the impediments and problems for the evolution. But he also collects the reasons why it is a natural and inevitable phase of the common law in the current age. He suggests that judges should be aware of the developments. In appropriate cases, they should inform their decisions with relevant international human rights jurisprudence. That will at least ensure that they develop domestic human rights law in a principled way, consistently with international law, and not in an idiosyncratic fashion “discovering” new fundamental rights which may otherwise be criticised as mere judicial invention.     

Between Justice and Law in Aotearoa New Zealand: Two Case Studies

Through two case studies, this essay examines the relationship between the operation and practice of law in Aotearoa New Zealand and the naming of the ‘unlawful’, ‘uncivil’ or ‘disorderly’ within a colonial context. Against the background of the apparent complicity between law and colonial interest and desire in Aotearoa, I argue that, in both the ‘Haka Party’ case (1979) and Mair v Wanganui City Council (1996), the acts of the defendants draw attention to the relationship between the authority of the law and the repression or exclusion of difference. According to the judges in both cases, the dictates of Maori law and custom were in conflict with the principles of ‘law and order’. Read in terms of colonial relations, the perceived relationship between Maori law and custom and the threat to ‘civilization’, law and order reveals the way in which ‘the law’ has operated in a culturally biased manner and has reflected the interests of Pakeha (New Zealanders of European descent). Thus, the perceived threat of the challenge made to the law in either case can be seen as the threat to reveal it for what it is, to expose the violence that maintains it, and thus to open a space for critique. Perhaps more powerfully than any physical attack on the system itself, these acts which expose the law challenge it in the name of justice, making it possible for the law to be seen both as a reflection of a particular cultural interest and hence as co-opt-able, takeable and able to be made to serve another end, that of the other in the name of justice. This revised version was published online in July 2006 with corrections to the Cover Date.