The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20, Judgment, Appeals Chamber (20 May 2005)

This case note identifies the relevant findings of the AppealsJudgment of Semanza, which have an impact on the developmentof international criminal law. In particular, the case notewill discuss the phenomenon of cumulative convictions, the positionof authority within the definition of ordering and the competenceof the Appeals Chamber to enter a first conviction.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).     

Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

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 International Criminal Tribunal for the Former Yugoslavia: Judgements in 2005

The year of 2005 was a productive one for the InternationalCriminal Tribunal for the Former Yugoslavia (ICTY), which rendereda total of ten judgements. The present article, concentratingon the key facts of the case and on novel development in internationalcriminal and humanitarian law, reviews—in chronologicalorder—the judgements of the ICTY Trial Chambers and ofthe Appeals Chamber.     

Towards the End and Beyond: The "Almost" Referral of Bagaragaza in Light of the Completion Strategy of the International Criminal Tribunal for Rwanda

The Bagaragaza case was the first at the International CriminalTribunal for Rwanda in which the referral of an accused to anational jurisdiction was discussed. Such a referral may bemade at the discretion of a Trial Chamber designated by thePresident, if the Chamber satisfied itself that the Accusedwill have a fair trial and that the death penalty will not beimposed or carried out. The referral can be made to three differentStates: the one where the accused was arrested, the one werethe crimes were committed and the one which has jurisdictionand is willing and adequately prepared to hear the case. Inthe Bagaragaza case, the request for referral was dismissed,because the Referral State in question, the Kingdom of Norway,has no provision for genocide in its penal law. This paper discussesthe referral mechanism and the role it plays in the Tribunal'sambitious completion strategy. An analysis of the Bagaragazacase will show how this mechanism has actually been applied,concluding that the Tribunal rightly resisted the pressure toabide by the completion strategy and chose substance over form.After the Tribunal's closure, two important questions will facethe international community: (a) Where will convicted and acquittedpersons be relocated? (b) Has international criminal justicebeen promoted at the expense of long-term peace and stability?     

A Fine Line Between Pleasure and Pain: Would Decriminalising BDSM Permit Nonconsensual Abuse?

The increasing social visibility of Bondage/Domination, Discipline/submission and Sadism/Masochism (BDSM) within Western society has placed pressure on the criminal law to account for why consensual BDSM activities continue to be criminalised where they involve the infliction of even minor injuries on participants. With moralistic and paternalistic justifications for criminalisation falling out of favour, one key justification that is gaining traction within international commentary on BDSM is the “bogus BDSM argument”. The bogus BDSM argument contends that BDSM activities should be criminalised because otherwise false claims of BDSM will be used by defendants to excuse or minimise their criminal liability for nonconsensual abuse. This article refutes this argument by showing how it relies on premises that are unjustifiable, illogical and irrelevant. This article concludes that the decriminalisation of BDSM would not permit nonconsensual abuse so long as legal officials were equipped with sufficient knowledge about the norms and conventions of BDSM culture.

     

Injunctions and the Public Interest in Fair Use Cases After eBay

The indeterminacy of the fair use doctrine can frustrate those who wish to use copyrighted material to create something new. When coupled with the ready availability of injunctive relief for plaintiffs in infringement suits, this uncertainty can cause a chilling effect that prevents artists, scholars and others from asserting their fair use rights to the fullest. This article examines procedural changes regarding the award of injunctions that were mandated by the Supreme Court of the United States in eBay, Inc. v. MercExchange, L.L.C. and extended to copyright cases by the Second and Ninth United States Circuit Courts of Appeals. It concludes that the procedural safeguards instituted in these cases will help shift the balance of power in fair use cases away from copyright plaintiffs to protect defendants with credible fair use claims and better serve the public interest.     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Divergent Approaches to Determining Responsibility for Genocide: The Darfur Commission of Inquiry and the ICJ's Judgment in the Genocide Case

Internationally sanctioned assessments of genocide are relativelyuncommon, and since genocide is usually assessed in the contextof an individual's criminal prosecution, assessments of stateresponsibility for genocide are even rarer. Yet two such analyseshave recently been completed: the International Commission ofInquiry on Darfur's Report and the International Court of Justice'sJudgment on genocide in Bosnia. On a key issue, the methodologyfor determining whether a state is responsible for genocide,they diverged. Whereas the Darfur Commission determined whetherthe ‘central government’ of Sudan pursued a statepolicy or plan for genocide in Darfur, the ICJ stressed thata state commits genocide through the acts of its officials,holding that if a state organ or a person or group whose actsare legally attributable to the state, engages in genocide,then the international responsibility of that state is incurred.This article critically examines the different methodologicalapproaches taken by these two bodies in light of internationaljurisprudence. It argues that the Darfur Commission erred infocusing its genocide inquiry on whether high-level officialsin Sudan's government possessed genocidal intent, rather thanon the perpetrators of the underlying criminal acts. In addition,it argues that, whether the Commission's goal was to determinestate responsibility or individual criminal responsibility,its approach was at variance with international law as elucidatedin the UN ad hoc tribunals and as subsequently confirmed bythe ICJ in the Genocide Case. In that regard, the ICJ Judgmentreestablishes two sound methodological principles: the existenceof a state plan or policy, although probative of intent, isnot an implicit element of genocide; and determining state intent(however that may be defined) is not a part of determining stateresponsibility for genocide.     

The Shifting and Multiple Border and International Law

The question of how the ‘border’ is conceived ininternational law, and how it shapes identity and peoples’lives, remains largely unexplored in the international legalliterature. This article seeks to contribute to our understandingof the meaning of the border in international law, and in thecontemporary context, by drawing on the work of the philosopherand political theorist, Étienne Balibar, and by reflecting,in the light of his work, on the recent decision of the Houseof Lords in R v Immigration Officer at Prague Airport. It isshown that international law's focus on the territorial bordermay render invisible other borders which are significant forsubaltern groups, and thereby fail to address the manner inwhich borders affect lives and determine outcomes. Borders arenot stable and ‘univocal’, but instead, ‘multiple’,shifting in meaning and function from group to group. They arealso being ‘exported’ such that a person may experiencea foreign border while still within the territory of their owncountry. In highlighting the multiplicity of borders, the articleseeks to prompt further reflection on the articulation and applicationof norms of international law in a way that addresses the realitiesof the contemporary context.     

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.     

Event Studies and the Law: Part I: Technique and Corporate Litigation

Event studies are among the most successful uses of econometricsin policy analysis. By providing an anchor for measuring theimpact of events on investor wealth, the methodology offersa fruitful means for evaluating the welfare implications ofprivate and government actions. This article is the first ina set of two that review the use and impact of the event studymethodology in the legal domain. This article begins by brieflyreviewing the event study methodology and its strengths andlimitations for policy analysis. It then reviews in detail howevent studies have been used to evaluate the wealth effectsof corporate litigation: defendants experience economicallymeaningful and statistically significant wealth losses uponthe filing of the suit, whereas plaintiff firms experience nosignificant wealth effects upon filing a lawsuit. Also, thereis a significant wealth increase for defendant firms when theysettle a suit with another firm, in contrast to other typesof plaintiffs, and in contrast to the settling plaintiff firms.These findings suggest that, at a minimum, lawsuits are nota value-enhancing way for corporations to settle their disagreementswith other corporations. In addition, the market appears toimpose a higher sanction on firms than actual criminal sanctions,and reputational losses are of equal magnitude for civil finesas for criminal ones. The article concludes with some recommendationsfor researchers: the standards for conducting an event studyare well established; researchers can increase the power ofan event study by increasing the sample size, and by narrowingthe public announcement period to as short a time frame as possible.The companion article reviews the use of event studies in corporatelaw and regulation.     

The contribution of the European Union to the rule of law in the field of international investment law through the creation of a Multilateral Investment Court

The concept of the international rule of law has developed in a form distinct from, but related to, the rule of law at the domestic (or European) level. This article examines the notion of the international rule of law and then, after explaining the international system of investment protection and its dispute settlement system, sets these against the international rule of law. It concludes by looking at how the European Union's proposal for a Multilateral Investment Court would contribute to augmenting the international rule of law in the field of investment protection.     

意思表示分析

意思表示是私法秩序下绝大多数法律关系的起点。意思表示作为人的内心活动的外部传达或宣示 ,必然要引出意思与表示是否一致 ,以及两者不一致时如何对已有意思表示进行判断的问题。解决这个问题的关键是如何理解意思与表示在法律交易中的实质作用及其相互关系。较可取的做法是认为意思表示的内容与效力应该通过规定性的表示获得。     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

Bring Down The Walls!--On the Ever-increasing Dynamic between the National and International Domains

Picking up where the transnational law movement left off, thisarticle seeks to further bring down the conceptual walls whichdoctrine has established at the nexus between the national andinternational domains.This article examines received wisdomon the status as a subject of public international law and arguesfor such status and attendant immunity for non-governmentalorganizations when performing de jure imperii tasks on the internationalarena. Furthermore, it demonstrates how public internationallaw disputes between States may be resolved in the domesticCourts of the defendant State. Finally, the article shows howthe Statute of the International Criminal Court straddles thedomestic and international domains by creating norms ultimatelyenforceable towards individuals regardless of whether the normswere incorporated or transformed domestically. It expressesthe hope that the Statute will be followed by many brethren!     

Law, Struggle, and Political Transformation in Northern Ireland

This article analyses the role of law as an element of the Republican Movement's violent and political struggle during the Northern Ireland conflict. The trials and legal hearings of paramilitary defendants, the use of judicial reviews in the prisons, and the use of law in the political arena are chosen as three interconnected sites which highlight the complex interaction between law and other forms of struggle. The author argues that these three sites illustrate a number of themes in understanding the role of law in processes of struggle and political transformation. These include: law as a series of dialogical processes both inside and outside a political movement; law as an instrumental process of struggle designed to materially and symbolically 'resist'; and the constitutive effects of legal struggle upon a social and political movement. The article concludes with a discussion as to whether or not Republicans' emphasis upon 'rights and equality' and an end to armed struggle represents a 'sell out' of traditional Republican objectives.     

The International Development (Official Development Assistance Target) Act 2015: Legislative Spending Targets,Poverty Alleviation and Aid Scrutiny

With the enactment of the International Development (Official Development Assistance Target) Act 2015, the United Kingdom has enshrined an aid target in law. It is now under a legal duty to spend 0.7% of Gross National Income (GNI) each year on aid. This article assesses the implications of enshrining a spending target for development assistance in law. It argues that commentators have focused their analyses too narrowly on the legal target and that it is in fact the mechanisms for scrutinising development assistance contained in section 5 of the new Act that will be important in future. This is because judicial scrutiny of aid spending is a remote possibility as a result of the International Development Act 2002. The article provides an analysis of the new legislation in the context of the UK's now detailed legislative framework for international development aid and concludes that this framework is far from satisfactory.