Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution To International Criminal Law Jurisprudence And Customary International Law

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.     

The Obligation to Provide Reparations by Armed Groups: A Norm under Customary International Law?

Netherlands International Law Review - Reparations represent a key element to redress the suffering caused to victims of armed conflict. Taking into account the predominantly non-international...     

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

Beyond the Law?: The Justice of Deconstruction

This paper offers a close reading of Derridas essay Force of Law that emphasises the twin strengths of a deconstructive approach to questions of law and justice -- textual analysis and political context. Derridas interest is in limit or test cases, and so he engages with the fraying edges of the law, its borders, the frontiers that are most heavily policed because they are most fragile, for example capital punishment, genocide, general strikes and terrorism. Derrida undertakes an exploration of violence through a reinterpretation of Walter Benjamins Critique of Violence. At the heart of Derridas difficult argument is a demand for justice that goes beyond the cataloguing of specific injustices, and beyond the terms of Benjamins critique. The utopian impulse that underpins Force of Law is carried over into Specters of Marx, Derridas recent explicit grappling with the legacy of Marxism. The links between these two texts by Derrida implies a sustained politics of radical commitment on the part of deconstruction, a commitment to future forms of legality and egalitarianism, a theory of justice posited upon prescience rather than precedent.     

Distorting Fundamental Norms of International Law to Resurrect the Soviet Union: The International Law Context of Russia’s Invasion of Ukraine

Netherlands International Law Review - Russia’s invasion of Ukraine which commenced on 24 February 2022 represented just the latest, albeit most devastating, intervention in a neighbouring...     

New Supreme People''''s Court Interpretation on the Arbitration Law

The Supreme People s Courtof the PRC (the“SPC”) has issued its latestInter-pretation on Certain Issues Relatingto the Application ofthe Arbitration Lawon8 Sep-tember2006 (the “Interpretation”). Since the Arbitration Law was adopted in1994, the SPC has…     

The Advent of Preventive Criminal Law: An Erosion of the Traditional Criminal Law?

Criminal law in contemporary societies is undergoing a transformation or according to some, even a paradigm shift. The reach of criminal law is now extended to terrains that were hitherto immune to criminalization. These new forms of criminalization. in post-heroic risk societies are targeting conduct well before it causes a harm. The prime examples of this preventive criminalization. are pre-inchoate offences, crimes of possession of “innocent” objects and crimes of abstract endangerment. The common trait of these offences is that they enable the so-called preponing criminal liability (Vorverlagerung), through which the earliest of preparatory acts, neutral, everyday activities such as merely standing around or merely possessing may well fall within the reach of criminal law. This phenomenon is now taking place virtually everywhere considered by many as an erosion of the traditional post-enlightenment criminal law model. Yet, proponents of the preventive criminal law are suggesting that such laws are needed in order to avert risks (terrorist attacks, for instance) while they are at preparation phase. There is, therefore, a tension between the traditional criminal law and new security interests that pose new questions which need to be addressed by a meticulous analysis. In this article I shall try to deal with following questions: Whether these preventive offences are inherently incompatible with the rule of law? How far a law-abiding nation can go in criminalizing preparatory acts? Are there any promising constraining constitutional principles or instances that delimit preventive criminalization?     

Commanders on Trial: The Blaškić Case and the Doctrine of Command Responsibility under International Law

Netherlands International Law Review -     

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.     

The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

Netherlands International Law Review - This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It...     

The Right to Development in International Law: New Momentum Thirty Years Down the Line?

The right to development (RTD) is contested in international law, politics and practice. This remains the case, despite the 30-year existence of the United Nations Declaration on the Right to Development (UNDRTD), the many substantive leads that current international law provides, and the renewed inspiration that can be drawn from Agenda 2030 and its sustainable development goals. This article explores whether there is a possible new momentum for the RTD in international law. Deep substantive and political divisions about the exact content and implications of the RTD prevail between—and within—the North and the South. Up to now these divisions have stood in the way of achieving greater normative clarity, follow-up and implementation action. This state of affairs has directed us to adopt a pragmatic approach, by which we consider the scope for revitalizing the RTD through existing provisions of international law, rather than by creating additional normative frameworks. Thus, after a short sketch of the historical evolution of the RTD, we examine the nature, substance and implications of this right as conceived in the UNDRTD. Then, we pursue the question of how existing provisions of international law could be mobilized more explicitly for the sake of revitalizing the RTD and more in particular for its actual realization in the future. Three concrete means of implementation provide at least some prospect for positive change: international cooperation for development, accountability and monitoring mechanisms, and regional and inter-regional instruments and procedures.

     

“The Unnamed Third”: Roberta Kevelson's Legal Semiotics and the Development of International Law

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique -     

A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law

The adoption, on 20 October 2005, of the Convention on the Protectionand Promotion of the Diversity of Cultural Expressions (DiversityConvention) has returned the limelight to the suitability ofWorld Trade Organization (WTO) rules for cultural products.This article shows that the Diversity Convention, while an importantstep towards the recognition of cultural diversity as an internationallyrecognized public choice of states, does not affect the rightsand obligations of WTO Members as such. The original purposeof the Convention was to create a safe haven for cultural policiesand protect them from WTO disciplines. However, the centraloperative provision for bringing about the desired shieldingeffect for domestic policies safeguarding national culturalindustries against foreign competition, its now-article 20,while making a general claim to non-subordination in paragraph1, modifies this broad statement in paragraph 2 so as to onlyapply to treaties concluded at the same time or later. The articleexplores how to avoid or minimize an undesirable incongruencebetween liberal trade rules and the right of states to protectshelf-space for domestically produced cultural products.     

The Animal: A Subject of Law? A Reflection on Aspects of the Austrian and German Juridical Systems

In recent years there has been a marked increase in interest in animal welfare issues worldwide. This subject often evokes extreme points of view, and can be both intellectually challenging and emotionally dividing. It is undeniably a field where substantial progress has taken place, with a multitude of countries worldwide implementing their own animal welfare and protection laws. However, calls continue to be voiced for more extensive and courageous measures to be taken concerning both the content and the enforcement of animal welfare legislation. To highlight a variety of these promising and noteworthy ideas this article outlines and examines some selected and qualified aspects of a potential juridical approach to the subject by consulting the legal systems of Austria and Germany under this particular premise. The aim will be to ascertain the extent to which animals have been granted consideration and protection, for instance in spheres of Constitutional or Civil Law. What options exist to safeguard an animal by a legally founded and secured position, and on which rank in the legal system could such provisions possibly be established? Ideally, a complete legal network on all possible levels of the legal system should be developed, ensuring a comprehensive and an all-embracing protection of the individual animal.     

The International Law of Naval Blockade and Israel’s Interception of the Mavi Marmara

In this article I discuss the legality of Israel’s interception of the Mavi Marmara on 31 May 2010. Although Israel’s stopping, boarding and inspection of the Mavi whilst on the high seas would undoubtedly constitute a violation of the law of the sea during peace time, I examine whether this violation can be justified on the basis of international humanitarian law. Specifically, Israel asserts that it was enforcing a naval blockade. I examine the legality of this blockade. I suggest that the blockade was unlawful on the basis that customary international humanitarian law permits the use of naval blockades only in times of an international armed conflict. I argue that on 31 May 2010 Israel was not engaged in an international armed conflict with Hamas. Moreover, I submit that customary international law prohibits the use of blockades where they are intended to deny the civilian population objects essential for its survival or where the damage to the civilian population is excessive in relation to the anticipated military advantage. Israel argues that the intention of the blockade was to prevent war material from being delivered to Hamas fighters. This notwithstanding, I argue that because this blockade was causing a severe humanitarian crisis in Gaza on 31 May 2010, it was incompatible with customary international law and therefore unlawful. Furthermore, even if the deployment of the blockade could be considered lawful, I argue that the enforcement of the blockade was unlawful because Israel’s use of force to capture the vessel went beyond what was necessary in the circumstances.

     

The International Criminal Court and Mali: Towards More Transparency in International Criminal Law Investigations?

The author takes a closer look at the Situation in Mali and the Office of the Prosecutor (OTP)’s initiation of full investigations on the basis of article 53(1) ICC Statute. In accordance with OTP Regulation 29(1), the OTP produces so-called ‘article 53’ reports that analyze the legal position in conflict situations that are under pre-investigation against the background of the following legal criteria: jurisdiction; admissibility; and the interest of justice. These reports give an analytical basis for the Chief Prosecutor to render a positive or negative decision on whether a certain conflict reaches the level of formal criminal investigations. In Mali, the Chief Prosecutor took the fast lane, passing by several other situations that have been under pre-investigation for a longer period of time. To a certain extent, as will be outlined in this contribution, this can be explained by the self-referral mechanism and certain particularities in Mali. However, some selective choices remain the OTP’s mystery, covert due to the nebulosity of ‘gravity’.     

The Scope for and the Significance and Desirability of the Use of the Term ‘Genocide’ by Politicians: Joint Advisory Report by the Netherlands Advisory Committee on Issues of Public International Law and the External Advisor on Public International Law (March 2017)

Netherlands International Law Review -