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.     

Incurable Sex Offenders, Lousy Judges & The Media: Moral Panic Sustenance in the Age of New Media

There is consensus that since the 1990s, we have experienced a spike in public concern over sexual offenders. Analyzing this concern as a moral panic, this paper argues that national television coverage, as it picks up local news, adds heat to the fire by re-naming the villain as an inadequate judicial system. This process helps to sustain a moral panic, while narrowing the available discourse about the nature of appropriate punishment. Drawing upon a well-publicized example of a media event in Vermont, this paper extends the theory of moral panics to add another stage to the process—a stage presented by the advent of cable news programming, the relationship between local and national media, and the explosion of blogs. In order for a panic to sustain over an extended time period, the rhetoric about it must transform. In particular, the claimsmaking about the nature of the problem must evolve. In particular, the panic has evolved from sex offenders as folk devils to an attack on judicial discretion. The development of the outcry over judicial discretion was due, in part, to media distortion of the case. I will thus trace the trajectory of this one case to demonstrate the role of the media in shaping and sustaining the panic.     

Is victim identity in genocide a question of science or law? The scientific perspective,with special reference to Darfur

In genocide, victims must represent an ethnic, racial, religious or national group. But is victim identity a question of science or law? Must victims be a socially recognized group or can group identity exist solely in the mind of the perpetrator? This question is relevant to the on-going crisis in Darfur. The “Arab-on-African” violence depicted in the media encompasses identities not shared by Darfurians. This study details an evaluation of victim identity in Darfur, based on field research and literature review. Darfurians are defined by subsistence strategy and economic groups are not protected under genocide law. Whether Darfur is genocide depends on whether victims must conform to scientific group classifications or need only be defined by their relationship to the perpetrators.     

Procedural justice and ethical decision making

Procedural justice, in the form of voice and respectful treatment by supervisor, and ethical decision making are examined in this research. Ethical decision making is hypothesized to be a direct function of moral intent, as indicated by willingness to use moral criteria in decision making. Moral intent is, in turn, expected to be a function of the decision-making context, including perceptions of voice, respect and trust between supervisor and subordinate, and moral climate. Individual moral development is also expected to have a positive effect on moral intent. Results generally support the model, with two exceptions. First, perception of voice has a negative effect on moral intent, while caring climate and respectful supervisory relations have the expected positive effect on moral intent. These results suggest either a compensatory model of ethical decision making or a complacency effect. Second, individual characteristics had very little effect on either the decision made or the level of moral intent developed, save for one decision. These results suggest an important overlooked variable, the salience of issues for procedural justice concerns.     

AGE,GENDER, AND THE CRIME OF CRIMES: TOWARD A LIFE‐COURSE THEORY OF GENOCIDE PARTICIPATION*

This article asks whether genocide follows the age and gender distributions common to other crime. We develop and test a life‐course model of genocide participation to address this question using a new dataset of 1,068,192 cases tried in Rwanda's gacaca courts. Three types of prosecutions are considered: 1) inciting, organizing, or supervising violence; 2) killings and other physical assaults; and 3) offenses against property. By relying on systematic graphic comparisons, we find that the peak age of those tried in the gacaca courts was 34 years at the time of the genocide, which is older than the peak age for most other types of crime. We likewise find that women were more likely to participate in crimes against property and comparatively unlikely to commit genocidal murder. Symbolic–interactionist explanations of crime suggest people desist from crime as a result of shared understandings of the expectations of adulthood. We argue that this process may be turned on its head during genocide as participants may believe they are defending their communities against a perceived threat. Thus, in contrast to other criminological theories suggesting that people must desist from crime to be accorded adult status, some adults may participate in genocide to fulfill their duties as adult men.     

Predicting Proportionality: The Case for Algorithmic Sentencing

A basic principle in sentencing offenders is proportionality. However, proportionality judgments are often left to the discretion of the judge, raising familiar concerns of arbitrariness and bias. This paper considers the case for systematizing judgments of proportionality in sentencing by means of an algorithm. The aim of such an algorithm would be to predict what a judge in that jurisdiction would regard as a proportionate sentence in a particular case. A predictive algorithm of this kind would not necessarily undermine justice in individual cases, is consistent with a particularistic account of moral judgment, and is attractive even in the face of uncertainty as to the legitimate purposes of punishment.     

Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide

This article discusses one of the most controversial yet importantmodes of liability in international criminal law: joint criminalenterprise (JCE). One such controversy is whether Third CategoryJCE can serve as a basis for genocide convictions. To answerthis question one needs to uncover the nature and origins ofJCE. It is submitted that convictions for genocide based uponthe application of Third Category JCE are justifiable. Thiscontention stems from the premise that JCE is a form of criminalparticipation to which principles of derivative liability apply.However, such an approach is only valid when JCE is strippedto its core and applied as a small-scale group crime, whichrequires proof of a direct link between co-perpetrators. Moreover,in the case of Third Category JCE, a participant should be convictedof participating in genocide, which would carry a lower sentencethan committing genocide as a participant in a First or SecondCategory JCE.     

Reparation in Cases of Genocide

In the judgement delivered in Bosnia and Herzegovina v. Serbia,the International Court of Justice (ICJ) found that Serbia,with regard to the acts of genocide committed in Srebrenica,had breached the obligation, as set out in Article I of the1948 Genocide Convention, to prevent genocide. However, it alsofound that Bosnia and Herzegovina had no right to monetary compensationand that the mere declaration of Serbia's responsibility fornot preventing the genocide in Srebrenica was in itself appropriatesatisfaction. This article criticizes the decision of the ICJnot to accord monetary compensation, which was based on thelack of a causal nexus between the failure by Serbia to complywith its obligation to prevent genocide and the death of 7000men in Srebrenica. It argues that the Court should have shiftedthe burden of proof and should have required Serbia to showthat even if the institutions of the then Federal Republic ofYugoslavia (FRY) had taken appropriate measures, the BosnianSerbs would nonetheless have completed their criminal plans.Concerning the issue of satisfaction, the article notes thatthe ICJ could have ordered symbolic monetary damages, by takinginto account international practice and the request by the Applicant.In addition, it observes that international tribunals enjoya large measure of discretion in awarding satisfaction and that,in making a determination on the most appropriate form of satisfactionthe genocidal tragedy itself should not have been left aside.In this connection, the ICJ could have found guidance in thecase law of the European Court of Human Rights, which in someinstances has taken into account the degree of pain and sufferingendured by the victims. Finally, with regard to guarantees andassurances of non-repetition, the article notes that these donot constitute a form of reparation, but rather should be consideredas an expression of the obligation to comply with the primaryrule incumbent upon a state in particular situations. The articleagrees with the Court's conclusion that an assessment of theprevailing situation in Bosnia and Herzegovina did not provideany clues to the presence of an actual threat to the physicalintegrity of the Muslim population. However, it contends thatthe reluctance by Serbia to arrest and transfer to the ICTYGeneral Mladi, more than three months after the delivery ofthe judgment of the ICJ and the issuance of a specific orderin this regard, unequivocally demonstrates the strong ties ofsolidarity between the Serbian leadership in Serbia and in theRepublika Srpska. Serbia is making itself an ex post accompliceof genocide, with far-reaching consequences for its envisagedintegration into the European Union.     

The Ethics of Plea Bargaining in International Criminal Trials

The paper argues that contemporary theoretical and philosophical concerns relating to the practice of plea bargaining in international trials for crimes such as genocide should be seen in the broader context of the perceived legitimacy of international trial justice. The paper questions the capacity of international trial structures to deliver a form of truth which contributes to justice suggesting that the legitimacy of the truth available is conditioned by ideology and normative practice. The paper suggests that the key to transforming international trial justice lies in promoting the link between trial ideology and the perceived moral legitimacy of its outcomes through the exercise of judicial discretionary power. Ralph Henham is Professor of Criminal Justice, Nottingham Law School, Nottingham Trent University.     

Human rights violations and genocide in the Democratic Republic of the Congo

The massacres that took place in the Democratic Republic of Congo (DRC) between 1996 and 2003 have posed an interesting challenge to the global community, specifically to its more powerful members. Ironically, the Tutsi-dominated government of Rwanda enjoys international recognition and benefits based on the genocide, Rwanda suffered in 1994, but continues to deny the same benefit to Hutus as they were accused of leading a counter-genocide campaign then in the DRC. While the people of the DRC, as well as human rights activists, call for justice for all who were affected, the government of Rwanda, strongly backed by a number of powerful international powers, opposed attempts by the international community to pin charges of genocide perpetrated by its army in the DRC on it. Because of the clear negation of the genocide report by the Rwandan government, the nature of human rights, human rights violations, and genocide criteria proposed and defended by key members of the international community in relation to the mass killings in the DRC are examined.     

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?     

Between Law and Culture: Rwanda's Gacaca and Postcolonial Legality

This article recounts a clash between an establishment international nongovernmental organization (NGO), Amnesty International, and the government of Rwanda over the meaning of international human rights norms in a postconflict society. It offers a critical perspective on the mainstream human rights community's due process critique of Rwanda's gacaca— a system of over ten thousand local judicial bodies modeled on a precolonial communal dispute resolution the Rwandan government introduced to process the over one hundred twenty thousand suspects crowding its prisons following the 1994 genocide. This moment of norm contestation offers a lens to broader problems facing the human rights regime. It argues that Amnesty International's legalistic approach to the gacaca prevents it from appreciating its unique postcolonial hybrid form, and that other approaches, such as the one adopted by Penal Reform International, are perhaps better models for human rights praxis in the developing world.     

Unmanaged care: towards moral fairness in health care coverage

Health insurers are generally guided by the principle of "actuarial fairness," according to which they distinguish among various risks on the basis of cost-related factors. Thus, insurers often limit or deny coverage for vision care, hearing aids, mental health care, and even AIDS treatment based on actuarial justifications. Furthermore, approximately forty-two million Americans have no health insurance at all, because most of these individuals cannot afford the cost of insurance. This Article argues that Americans have come to demand more than actuarial fairness from health insurers and are increasingly concerned by what I call "moral fairness." This is evidenced by the hundreds of laws that have been passed to constrain insurers' discretion with respect to particular coverage decisions. Legislative mandates are frequent, but seemingly haphazard, following no systematic methodology. This Article suggests an analytical framework that can be utilized to determine which interventions are appropriate and evaluates a variety of means by which moral fairness could be promoted in the arena of health care coverage.     

裁量基准公众参与模式之选取

公众参与作为一种直接的民意表达方式,可以提供类似议会立法一样的民主形式和内容,因而成为补充裁量基准正当性基础的首选方案。但是,基于裁量基准行政自制属性和行政成本的考量,它仍然不宜作为一项强制性义务强加给行政机关,而应由行政机关自主决定。实践中,行政机关应当以裁量基准的"质量要求"和"可接受性要求"为基本参考因素,比对相对人与自己的预期目标是否一致,根据其特殊性及实际情形,在"改良的自主管理决策"、"分散式的公众协商"、"整体式的公众协商"、"公共决策或共同决定"四种程度不同的公众参与模式中选择适用。     

刑事证据能力的法定与裁量

法定和裁量是诉讼过程中确定某一证据是否具有证据能力的两个不可或缺的手段。刑事证据能力规范在内容上的复杂多样,使得一部成文法典无法将它们完全包含其中。而且刑事证据能力规范的自身特点决定了它无法实现严格意义上的法定化。在成文法中确立的证据能力规范,只有一小部分适宜采取确定性规则的形式,而更多的则不得不通过标准或原则的形式赋予法官一定程度的自由裁量权。证据能力规范是从司法过程中产生并逐步发展起来的规范,立法机关能起到的作用甚为有限。因此,在我国试图由立法机关制定一部完备的刑事证据法典的想法并不具有可行性。     

厉鹗与朱彝尊“清空”词风之差异及文化探源

"清空"被清代浙派词家标为艺术至境,对"清空"艺术的追求,在不同作家手中呈现为不同的风貌.中期的宗主和巨匠厉鹗在审美趣味上偏好"孤淡",取境萧疏,意象冷寂,用字寒瘦,形成清幽冷峭的特色;浙派早期领袖朱彝尊则趋向"傅采",形成深情绵缈的风格.这是由于二人在性情品操、生平经历、爱情生活、文化底蕴等方面的差异造成的.从浙派"雅正"、"清空"的论词标准看,樊榭词才是其真正代表.     

论微信群主的民事责任承担

微信群主与群成员之间是一种法律调整之外的情谊关系,两者行使微信平台赋予的比如建群、退群或移除群聊等功能权限的行为属于情谊行为。但这并不意味着微信群不受法律调整,法规范层面已对群主和群成员权利义务作出规定。对于群主而言,因其对微信群负有法定管理职责,若群成员之侵权行为损害他人合法权益,则群主应当承担共同侵权责任。群主对于微信群内可能产生的风险具有较强的控制力,其管理职责本质上属于一般注意义务的范畴,这与以一般注意义务为理论基础的安全保障义务具有内在关联性。微信群内的群聊行为与《侵权责任法》第37条规定的群众性活动性质上均属于不特定多数人参加的活动。因此,当群成员侵害他人合法权益时,群主应当承担补充侵权责任。但如果群主已经在功能权限范围内采取了必要措施,则认为其尽到了管理义务,应予免责。     

Crime and punishment in Rwanda

In 1994 Rwanda was devastated by genocide that killed hundreds of thousands of people and destroyed the country’s infrastructure. The credibility of the criminal justice system was questioned following the genocide because it had failed to stop the slaughter and may have contributed to it. In order to address these concerns, Rwanda rebuilt its criminal justice system in light of its history and troubled past. The success of the reestablishment may be debated but there can be no question that Rwanda had a tabula rasa with which to form an effective criminal justice system. Examining the law details the ideals of the criminal justice system as established post-genocide. These ideals exemplify the democratic process. Examining current events allows for a practical assessment of the success of the new system. In both theory and practice the country’s criminal justice system has changed drastically since 1994.     

Preventing Genocide: Measuring Success by What Does Not Happen

Although the concept of genocide prevention is recognized in international jurisprudence and the Responsibility to Protect (R2P) doctrine, its content remains vague and peripheral to legal scholarship and policy-making. Effective prevention is particularly challenging to grasp because success must be measured by what does not happen. Reaction to mass-atrocities must be replaced by early warning and rapid engagement through modest and feasible measures. With escalating violence, there may be greater attention to a situation, but also less willingness to intervene as humanitarian intervention through force and similar means becomes increasingly costly. A better understanding of the norms, institutions, and tools within reasonable reach of decision-makers is essential to translating genocide prevention from an elusive ideal into reality. This article evaluates and elucidates the law and practice of early warning and genocide prevention. First, the far-reaching potential of a preventive approach is illustrated based on the example of Rwanda where measures as modest as jamming radio broadcasts inciting hatred could have substantially constrained genocidal violence. Second, scholarship on the indicia and prediction of mass atrocities will be explored with a view to understanding the timeliness of action. Third, the legal and institutional dimensions of an obligation to prevent genocide and other mass-crimes will be addressed with a focus on recent developments within the UN system. And fourth, success stories from Macedonia, Côte d??Ivoire and Burundi will be examined in order to demonstrate the practical impact of early warning and prevention     

隐藏在行政解释背后的政策裁量:概念、定位与功能

现有研究承认公共政策介入行政执法和司法职能的事实,但鲜少有研究关注公共政策在法律解释中的功能。“吐槽医院被拘案”为讨论政策裁量在行政解释中的功能角色提供了契机。学理研究显示,行政与政策之间的相似性与现代行政国家的行政效率诉求促使行政机关实施政策裁量。我国的行政解释过程背后蕴涵着复杂的利益纠纷,为政策裁量提供了合适的研究论域。政策裁量的实质是在行政解释过程中进行利益衡量,以便于解决行政解释过程中的各类争端,同时引导行政解释结果适应社会发展方向。政策裁量内容对于行政解释结论具有正反双重影响。