Amnesties in Transition: Punishment,Restoration, and the Governance of Mercy

Despite the much vaunted triumph of human rights, amnesties continue to be a frequently used technique of post‐conflict transitional justice. For many critics, they are synonymous with unaccountability and injustice. This article argues that despite the rhetoric, there is no universal duty to prosecute under international law and that issues of selectivity and proportionality present serious challenges to the retributive rationale for punishment in international justice. It contends that many of the assumptions concerning the deterrent effect in the field are also oversold and poorly theorized. It also suggests that appropriately designed restorative amnesties can be both lawful and effective as routes to truth recovery, reconciliation, and a range of other peacemaking goals. Rather than mere instruments of impunity, amnesties should instead be seen as important institutions in the governance of mercy, the reassertion of state sovereignty and, if properly constituted, the return of law to a previously lawless domain.     

Shedding the blanket of immunity: a commentary on the global principle of ending impunity,realpolitik, and legal precedent

Over the course of the past two decades, there have been attempts by governments and the international political community to limit the scope of immunity granted to heads of states. Nevertheless in recent years we have witnessed former heads of state being brought to justice through ad hoc international criminal tribunals and the permanent International Criminal Court. Yet, head of state immunity remains one of the leading points of contention in international law. The issue is further compounded with the multiplicity of national systems that fall short of their duty to prosecute foreign heads of state if they have committed heinous crimes, those considered jus cogens which constitute peremptory norms. As such, there is a need to examine immunity from prosecution by another state separately from immunity from an international tribunal and/or court. This is especially the case given the problems of initiating ad hoc tribunals and the limited abilities of the ICC, highlighting the need to ensure cooperation of states’ willingness and ability to prosecute. In doing so, I draw from the infamous case of former President of Chile, Augusto Pinochet, and subsequent attempts by national systems to hold accountable foreign heads of state. I conclude by suggesting that the optimism for ending impunity is not only premature, but misguided given the realpolitik surrounding national progression for ending head of state immunity and ensuring their legal obligations to prosecute.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Dealing with the holocaust and collaboration: The Dutch experience of criminal justice and accountability after World War II

This paper addresses the problem of ``settling accounts' after periods of armed conflict in a given society (be they civil war, insurrection or occupation by foreign forces), when those who took the losing side have come to be defined as collaborators, a process now known as transitional justice. More specifically, it looks at the way in which Dutch citizens who collaborated with the Nazi occupation forces in deporting and murdering about 80% of the Jewish population of the country, were dealt with after the Second World War. There are generally assumed to be three ways of coming to terms with such traumatic events: prosecution and criminal trial, truth and reconciliation commissions or a combination of both. Under present international law, states have a duty to use the criminal law and to prosecute and punish perpetrators of crimes againt humanity and war crimes, specifically because it is felt that prosecution will bring some measure of recognition and healing to victims. After the Second World War in the Netherlands, the emphasis was indeed on criminal law and the manifest aim was swift and just retribution. The author shows how this was frustrated by political considerations; but – and perhaps this is a more important lesson for the future – also by the fact that criminal law, by its very nature, is unable to deal with the problems of collective guilt or to recognise the suffering of collective victimhood.     

The role of prosecutors in promoting and strengthening the rule of law

At the institutional core of governance systems based on the rule of law is not only a strong independent judiciary but also an effective prosecution service committed to upholding the rule of law and human rights in the administration of justice. There are many aspects in the responsibility of prosecutors to promote and strengthen the rule of law, including their duty to combat impunity and ensure the lawfulness of State actions. This paper reviews some of the challenges that prosecutors can anticipate in performing their responsibility to uphold the rule of law. It also touches upon some of the issues that have emerged in recent years in relation to the performance of that important function in the context of emergency situations (e.g. counter-terrorist activities), within the global regime of international cooperation in criminal matters and in the context of post-conflict reconstruction and peace-building initiatives.     

EULEX and the fight against organised crime in Kosovo: what’s the record?

Staffed by international police officers, prosecutors and judges, EULEX was mandated to strengthen Kosovo’s domestic rule-of-law institutions and endowed with executive authority to ensure that high-level criminal cases, including organised crime, are properly investigated and prosecuted. Yet, after more than nine years of operation, EULEX has proven largely ineffective in using its executive authority to counter organised crime and its capacity-building efforts have not led to significant local improvements in this area. Insufficient framework conditions shaped by years of impunity for politico-criminal power structures prevent capacity-building efforts from taking effect as local rule-of-law institutions remain hesitant and timid to investigate and prosecute high-level criminals. It is argued that EULEX’s own conduct and weak executive performance has severely undermined the mission’s efforts to strengthen local law enforcement through capacity-building.     

IN SEARCH OF A WORKABLE DIVISION OF LABOR BETWEEN NATIONAL AND INTERNATIONAL CRIMINAL JURISDICTIONS

This article deals with the question of the universal application of law from the perspective of necessary division of labor between national and international criminal jurisdictions. Applying international criminal justice fairly enhances its legitimacy, and international criminal law’s procedural aspects also must be fair. The universal application of international criminal law in multiple forums seems to be ensured by means of the proper division of labor between national and international criminal jurisdictions. Recent arguments show that this division of labor between national and international criminal jurisdictions may be properly handled in accordance with seniority criterion, which is the “big fish” versus “small fry” distinction. Lately, the international community has recognized seniority criterion as prosecutorial policy and a jurisdictional threshold, although in a different context, which is at a domestic level when that community tackles with the Somali pirates. The article argues that prosecuting both “big fish” and “small fry” is important for the universal application of international criminal law. In order to achieve this goal and to combat impunity, the feasible division of labor would be pursued with reference to the “big fish” versus “small fry” distinction.     

The Plea of Alibi in International Criminal Law as Viewed Through the Prism of the Common Law

The plea of alibi has acquired a prominent place in the short history of modern international criminal law, just as it does in common law criminal trials. At the ICTR, for instance, it is pleaded in virtually every case. It is expected that alibi will continue to vex the processes of international criminal courts and tribunals, especially given the exclusive focus of international criminal law on individual criminal responsibility, much of which has to do with the presence of accused persons at scenes of planning, conspiracy, instigation, aiding and abetting and execution of crimes. The plea of alibi in international criminal law is still a concept under construction. Jurisprudence is rife with uncertain propositions, tentative analyses and incomplete ideas. In the circumstances, there is a need to pay close attention to this area of the law. A constant review is required, with the aim of improving the law of alibi for its future application in international criminal proceedings. An attempt at such a review is made in the present article. The author reviews, among other things, the meaning of the term ??alibi??; whether it is a ??defence??; the feature of notice of alibi; burdens of proof in alibi cases, the prosecutorial duty to disprove the alibi, the need for clarity in the application of the principle of prosecutorial duty to disprove the alibi, and whether there should be a prosecutorial duty to investigate the alibi when timely notice is given; as well as alibi and the right to silence. The author approaches the discussions from the perspective of the common law, primarily due to the prominence of the plea of alibi in common law criminal trials in contrast to inquisitorial criminal trials.     

论人民检察院对行政处罚权的刑事法律监督

人民检察院通过对职务犯罪行使侦查权实现对行政权的监督是我国行政法学和检察学的传统理论。现实中行政处罚以罚代刑,不移送涉嫌犯罪案件等违反刑事法律问题普遍存在,行政执法与刑事司法衔接机制存在局限性。应对传统理论进行反思,确立人民检察院在行政处罚程序中的刑事法律监督地位,设置相应的检察监督机制,以有效地预防职务犯罪和惩治经济犯罪。     

Military Courts and Prosecution of Offences by National Defense Forces in the Dawn of the Complementarity Regime: The Case of Uganda

With the coming into force of the Rome Statute of the International Criminal Court (ICC Statute) and its complementarity regime, much emphasis has been placed on the role of national courts in prosecuting international crimes. Some states have demonstrated their commitment to this regime by; inter alia, ratifying the ICC Statute, enacting national legislation to implement the ICC Statute and establishing national judicial forums for prosecution of international crimes. Uganda is a prime example of states rising up to this challenge. Uganda ratified the ICC Statute in 2002. In 2008, it established the International Crimes Division (ICD) to prosecute international crimes and in 2010, it enacted the International Criminal Court Act to implement the ICC Statute. Even before these reforms, Uganda’s military courts had always relied on service offences to prosecute members of the national defence force. Worthy to note, members of the Uganda Peoples’ Defence Forces (UPDF) have been implicated in a number of atrocities, some of which can be categorised as international crimes. However, military courts continue to prosecute UPDF soldiers for these atrocities on the basis of service offences. The situation current in Uganda highlights a number of legal issues relating to: first, the adequacy of service offences to advance accountability for the international crimes allegedly committed by UPDF soldiers; secondly, the jurisdiction of military courts over international crimes; and thirdly, the effect of concurrent jurisdiction by the ICD and military courts on the rule against double jeopardy.     

关于法院能否变更指控罪名的探讨

检察机关代表国家向法院提起公诉。起诉书中载有指控的罪名、犯罪事实、证据、法律依据等。该文阐明了什么是罪名、罪名与罪状的关系 ;变更罪名的原因 ;法院有权变更罪名和应当遵循的原则 ;法院有权直接变更罪名或者最终变更罪名的情况等。     

Constructing International Crime: Lawyers,States, and the Origin of International Criminal Prosecution in the Interwar Period

This article explains the development of international crime as a legal category. I argue that states’ pursuit of political rights claims empowers international lawyers to develop new legal categories to grant states new tools to pursue their interests. At the same time, lawyers have a stake in defending the autonomy of law from politics, thus pushing for the development of legal norms and institutions that go beyond the original state intent. States’ turn to law thus begets more law, expanding the legal and institutional tools to solve international problems while simultaneously enforcing a commitment to principles of legality. To demonstrate the plausibility of the theory, the article studies the construction of the concept of an international crime in the interwar period (1919–1939). In response to the Allies’ attempt to prosecute the German Emperor, international lawyers sought the codification of international criminal law and drafted enforcement mechanisms. The interwar legal debate not only introduced international crime into the legal and political vocabulary, it also legitimized a new set of institutional responses to violations of international law, namely, international criminal prosecution.     

Protectors on trial? Prosecuting peacekeepers for war crimes and crimes against humanity in the International Criminal Court

Allegations of criminal conduct have been made against UN peacekeeping personnel. While only a small number commit criminal offences, these personnel must be held accountable for their actions. Ensuring accountability is difficult due to jurisdictional issues, including in which jurisdiction (host state, sending state, or third state) to prosecute offenders. However, the possibility of the International Criminal Court exercising jurisdiction over peacekeeping personnel (civilian or military) has not really been considered. This article will examine the potential applicability of the substantive law of war crimes and crimes against humanity under the Rome Statute to crimes committed by peacekeeping personnel.     

Human Rights Prosecutions and the Participation Rights of Victims in Latin America

Since the 1980s, there has been a significant rise in domestic and international efforts to enforce individual criminal accountability for human rights violations through trials, but we still lack complete explanations for the emergence of this trend and the variation observed in the use of human rights prosecutions in the world. In this article, we examine the role that procedural law has had in allowing societal actors to influence in this rising trend for individual criminal accountability. We do this by focusing on participation rights granted to victims, such as private prosecution in criminal cases. Based on an exploration of an original database on human rights prosecutions in Latin America and fieldwork research in three countries, we argue that private prosecution is the key causal mechanism that allows societal actors to fight in domestic courts for individual criminal accountability for human rights violations.     

论检察机关如何应对食品安全问题

检察机关在应对食品安全问题时,应建立健全行政执法与刑事司法衔接机制,严厉打击食品安全背后的职务犯罪,坚持快捕快诉,及时高效地打击食品安全犯罪,强化食品安全诉讼监督,维护司法公正,切实履行控申检察职能,积极防控食品安全群体性事件,积极面对社会公众,展现检察机关公信力和法律权威,同时加大对危害食品安全犯罪的调研力度。     

A New Paradigm of Customary International Criminal Law: The UN War Crimes Commission of 1943–1948 and its Associated Courts and Tribunals

This article focuses on the United Nations War Crimes Commission’s significant contribution to the development of customary international criminal law defined by the development of international legal standards and proceedings to combat impunity and promote justice. It draws on the Commission’s official history and its increasingly open archives in order to provide an overview of the UNWCC and its work, its members and its legacy for the contemporary era of international criminal law. The article firstly places the Commission in its historical context through the events and agreements that led to its creation and provided the legal character of the UNWCC. The defining characteristics of the Commission are afterwards described: the nations involved, the committee structure it formed and the sub-commission located in the Far East. Lastly, the accomplishments of the Commission are emphasised and criticisms of its work are presented. The article concludes with a discussion on the legacy of the Commission’s work and a possible future research agenda.     

International Criminal Courts and Political Reconciliation

In A Moral Theory of Political Reconciliation, Colleen Murphy devotes a full chapter to arguing that international criminal trials make significant contributions to political reconciliation within post-conflict and transitional societies. While she is right to claim that these trials serve an important function, I take issue with her with respect to what that important function is. Whereas Murphy focuses on the contributions international criminal prosecutions might make to political reconciliation within the borders of transitional societies, I claim instead that their primary function is to restore order at the international level and to dispense justice. The aims of justice are not always consistent with the aims of reconciliation. Moreover, several features of international criminal trials should give us pause with respect even to how well, in fact, they manage to serve the ends of international justice.     

The United Nations War Crimes Commission’s Proposal For An International Criminal Court

The article examines the evolution of proposals for and debates around the establishment of a permanent international criminal court. Taking as its starting point discussions conducted in the context of the Paris Peace Conference of 1919, the article focuses on the various domestic, regional and international organizations that seriously considered the prospect of establishing a court with jurisdiction to prosecute international crimes in the inter-war and immediate post-World War II periods. Particular attention is paid to the central role played by the United Nations War Crimes Commission in this regard. In addition, the article provides an overview of recurrent themes that would re-emerge during the drafting of the Rome Statute some 50 years after the conclusion of the UNWCC’s activities.     

Modelling Criminal Justice System Costs by Offence

This paper illustrates how to estimate criminal justice system costs by offence type. Criminal justice system costs are all the costs the authorities incur to prevent and investigate crime, prosecute criminals, impose sentences, and take care of victims and offenders. There are two approaches: the break-down and the bottom-up approaches. The break-down approach decomposes the aggregate budget into smaller pieces. The bottom-up approach multiplies known costs per activity by volumes for each activity and offence type. Both approaches can be combined with two types of estimates: incidence-based and prevalence-based estimates. An incidence-based estimate identifies all costs attributable to crimes committed or processed in a specified period regardless of whether these costs exceed this time period. A prevalence-based estimate identifies all costs incurred in a specified period regardless of when the crime was committed or processed. This paper looks at the differences between the two approaches and the two estimates and indicates which combination works best depending on the type of analysis and the availability of data. The methodologies are illustrated using examples from The Netherlands. These examples show that the availability of reliable data is crucial. The more assumptions have to be made, the less reliable the end results. Investing in better data in this area should be a first priority for governments interested in criminal policy evaluation.     

论联合国豁免的放弃

联合国组织在一定条件下放弃豁免,是《联合国特权与豁免公约》及有关国际法律文件明确规定的一项国际法律制度,这项制度美系到相美国际组织能否享有豁免以便履行职能和实现目的。同时也关系到与国际组织有关的其他各方,尤其是与国际组织交往的私人在国际组织一旦侵犯其权利的情况下能否得到救济。因此,国际组织放弃豁免是一项非常重要的国际法律制度。联合国豁免的放弃必须由其有权机关作出相应的意思表示。不论是民事行为,还是刑事行为,其豁免都是可以放弃的。联合国等国际组织放弃豁免的权利。同时也构成其必须履行的一项义务。