Rape and Sexual Violence as Torture and Genocide in the Decisions of International Tribunals: Transjudicial Networks and the Development of International Criminal Law

International criminal tribunals established by the UN Security Council in the 1990s have been widely acclaimed as active participants in the modern system of dynamic criminal justice. One of their best known achievements is the prosecution of rape and sexual assaults. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) set an example for other tribunals to follow. By interpreting a variety of international laws, the community of international legal professionals has been able to shift the prevailing understanding of rape and sexual violence away from that of an “unfortunate byproducts of war.” Not only has the epistemic community of legal professionals been able to end impunity for these crimes, but case-law of international tribunals has become a basis for subsequent trials at quasi-international tribunals. Decisions of the tribunals have been instrumental in drafting the Statute of the International Criminal Court and can be regarded as an example of the formation of new international norms by means of judicial decisions.     

Providing justice and reconciliation: The criminal tribunals for Sierra Leone and Cambodia

The Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers for Cambodia (ECC) represent a departure from the model established by the International Criminal Tribunal for the former Yygoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The SCSL and the ECC have often been referred to as “mixed” or “hybrid” tribunals in which there are significant domestic and international components. The tribunals include a combination of domestic and international judges, utilize domestic and international laws and are administered by a prosecutorial team composed of domestic and international lawyers. Many of these institutional changes have been brought about because of criticisms of the ICTY and the ICTR. The fundamental question of this article is whether these mixed tribunals are a more effective mechanism for providing justice and reconciliation than purely international solutions. This is an important question because both the international community and states are moving in the direction of mixed tribunals.     

From Adjudication to Aftermath: Assessing the ICTY’s Goals beyond Prosecution

After more than a dozen years of activity, some 161 indictments, 64 arrests, and 47 surrenders, the International Criminal Tribunal for the former Yugoslavia (ICTY) has accomplished a good deal in terms of its primary task of prosecution. Nonetheless, there is still much debate over the state of transitional justice in the Balkans and what has been accomplished. We cannot forget that the ICTY was created with broad political and social purposes in mind, specifically to contribute to the restoration and maintenance of peace. Using a comparative framework, we develop benchmarks of transitional justice outcomes to examine these vague but important and ambitious goals. Although conventional wisdom says that the ICTY is used instrumentally by Balkan leaders who are fundamentally opposed to the court??s existence, we demonstrate that there is also evidence of broader political and social change throughout the region. Thus, we contend that Balkan countries have indeed moved beyond mere prosecution.     

Witness to Rape: The Limits and Potential of International War Crimes Trials for Victims of Wartime Sexual Violence

¹Despite the proliferation of trauma and memory research inrecent years, we know very little about the contribution oftransitional justice mechanisms to psychological healing andsocietal reconciliation in the aftermath of genocide, armedconflict and politicized violence. Many scholars in this areahave argued that the disclosure of traumatic experiences isbeneficial to the psychological recovery process for survivorsof gross human rights violations. This article critically examinesthis therapeutic assumption within a transitional justice paradigm.The article explores the potentials and limitations of internationalwar crimes trials for victims of wartime sexual violence, focusingspecifically on the International Criminal Tribunal for theformer Yugoslavia (ICTY). The article provides a theoreticalframework for analyzing the significance of testimony at internationalwar crimes trials and raises some critical questions relatedto the psychological impact of trials. It is argued that dueto the sheer diversity and heterogeneity of wartime rape victims,the experience of giving testimony is likely to be mixed: whilesome victims may suffer under the constraints of legal process,under the right circumstances, war crimes trials may help othersto make sense of their suffering.     

Geographies of Crime and Justice: Contemporary Transitional Justice and the Creation of 'Zones of Impunity'

This article explores some of the challenges that transnationalcrimes pose to the operation of transnational justice. By transnationalcrimes, we mean serious violations of international human rightsand humanitarian law that transcend national borders and areperpetrated by state or non-state actors. Many national andinternational legal mechanisms may only address a segment ofthese crimes, creating what we refer to as ‘zones of impunity.’This article examines how these dilemmas are unfolding in threeAfrican contexts: the possibility that Charles Taylor is triedfor crimes in Sierra Leone but not in Liberia; that only Congolese,and not Rwandans or Ugandans, face prosecution for crimes inIturi or elsewhere in the Democratic Republic of Congo; or thatJoseph Kony escapes prosecution in Uganda through being allowedamnesty or exile in Sudan. Our analytic framework considershow geography and politics affect legal responses to transnationalcrimes.     

Justice,Human Rights,and Reconciliation in Postconflict Cambodia

Retribution? Restitution? Reconciliation? “Justice” comes in many forms as witnessed by the spike in war crimes tribunals, Truth &; Reconciliation Commissions, hybrid tribunals and genocide trials. Which, if any form is appropriate should be influenced by the culture of the people affected. It took Cambodia over three decades to finally address the ghosts of its Khmer Rouge past with the creation of a hybrid Khmer Rouge Tribunal. But how meaningful is justice to the majority of survivors of the Khmer Rouge auto-genocide when only a handful of top officials are tried? Further, given the persistent abuse of political and economic rights in post-conflict Cambodia, we are skeptical that justice or reconciliation is presently possible.     

Is the Sun Setting on Cosmopolitan Justice?

Reports on the UN criminal tribunals and the related hybrid courts raise grave concerns about their sustainability in terms of costs and their legal standards in respect of evidence. The effectiveness of the current courts is compared to the domestic prosecution of offenders from the Auschwitz concentration camp. Although the Auschwitz court failed to capture the enormity of the crime of genocide, there are nonetheless good reasons to re-visit the use of domestic courts and other remedies for such crimes today, particularly after adoption of the genocide law by nation states. Ideals of cosmopolitan justice behind the UN courts are being exported to societies that are ill-equipped to apply or afford them; and domestic legal development suffers as a consequence.     

The Gender of Transitional Justice: Law, Sexual Violence and the International Criminal Tribunal for the Former Yugoslavia

Recent efforts to develop and implement progressive models oftransitional justice have been significantly influenced by majordevelopments in the law concerning sexual violence in armedconflict. In particular, the International Criminal Tribunalfor the former Yugoslavia has pioneered accountability for sexualviolence against women in armed conflict. This article takesthe ICTY as a case study of how gender can structure the accountabilitymechanisms of transitional justice. The article analyses howlegal norms and practices instantiate and reiterate, ratherthan transform, existing hierarchical gender relations. It considersthe existing models of sexual violence as a criminal harm underinternational law, and then examines gendered patterns of legalpractice in ICTY prosecutions. To address this engendering oftransitional justice, the article produces a new model of theharm of sexual violence in conflict, suggests the developmentof a new international offence of sexual violence and generatesdifferent strategies for international prosecutions of sexualviolence.     

Why (not) arrest? Third-party state compliance and noncompliance with international criminal tribunals

Why do some states comply with their legal obligations to arrest suspects indicted by international criminal tribunals (ICTs) while others do not? Research on this question has mostly focused on “target” states, like the former Yugoslav republics, where ICTs have intervened. In contrast, this article offers the first test of theories regarding ICT arrest-warrant compliance and noncompliance by third-party states. I examine the International Criminal Tribunal for Rwanda (ICTR) and 26 third-party states implicated in the pursuit of the court's 91 indicted suspects. Using fuzzy-set qualitative comparative analysis, I find support for the procompliance influence of liberal democratic norms and foreign aid dependency on third-party states. I also find that noncompliance?—?something existing studies tend to leave untheorized?—?can be explained by the presence of either non- compliance constituencies or high official corruption. By testing several theories of compliance and noncompliance on a so far understudied class of cases, these findings provide support for the generalizability of a number of explanations in the broader literature on compliance with human rights obligations. The analysis also shows that problematizing noncompliance?—?and not merely reducing it to an absence of procompliance factors?—?can help us develop fuller explanations of compliance behavior.     

What's Reconciliation Got to do With It? The International Criminal Tribunal for the Former Yugoslavia (ICTY) as Antiwar Profiteer

Abstract

This article argues that the actions and activities of the ICTY have not been beneficial to achieving reconciliation or stability in the Balkans, but to the contrary are part of the reason that parts of the region have remained unstable. This result should not be unexpected as there is very little evidence, if indeed any, that indicates that protracted tribunals like the ICTY (and unlike, therefore, Nuremberg), have ever had, or even could have, beneficial effects on reconciliation. It argues, further, that the primary beneficiaries of the ICTY have been international human rights lawyers and human rights agencies, and in the region itself, the political parties of indictees. Considering the amounts of money spent on the Tribunal compared to those spent on rebuilding the region it seems that the ICTY has functioned better as an antiwar profiteer than it has as a promoter of peace and reconstruction     

The Abolition of the Death Penalty in Rwanda

This paper argues that Rwanda’s decision to abolish the death penalty should be viewed in a wider context rather than as a mere result of top–down pressure from the International Criminal Tribunal for Rwanda (ICTR). Part I traces the creation of the ICTR and the breakdown of negotiations as a result of the exclusion of the death penalty from the ICTR’s jurisdiction. It then outlines Rwanda’s efforts to prosecute the hundreds of thousands of individuals accused of committing genocide-related crimes and notes the limited and steadily decreasing role the death penalty actually played within Rwanda. Part II discusses Rwanda’s legislation abolishing the death penalty and argues that both international pressure and local historical and political forces influenced the decision. Part III situates Rwanda’s story within a growing paradox of excluding the death penalty from international criminal tribunals for the most serious crimes while national jurisdictions maintain it. It concludes that as in Rwanda, any perceived or potential impact of international criminal law in national jurisdictions must be measured in light of local circumstances.

Punishing Genocidaires: A Deterrent Effect or Not?

More than sixty years after the seminal Nuremberg trials, different forms of transitional justice mechanisms abound around the world. Above all, the International Criminal Court started recently the hearings in its very first case. Reading the document containing the charges against Thomas Lubanga Dyilo, a militia leader accused of horrendous war crimes committed in the Democratic Republic of Congo, the question of why to punish perpetrators of atrocity crimes seems almost ludicrous. However, concerns that international prosecutions inadvertently prolong or even exacerbate conflicts do require a response. Most proponents of international criminal tribunals argue that prosecutions have a deterrent effect. This article reviews the deterrence argument, highlights its inherent complexities, and proposes a refined approach to meet both the realities of atrocity crimes and international prosecutions.

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Building the Rule of International Criminal Law: The Role of Judges and Prosecutors in the Apprehension of War Criminals

International criminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of international criminal tribunals impact compliance with arrest warrants: through the selection of individuals to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of international criminal law.

Engendering Transitional Justice: a Transformative Approach to Building Peace and Attaining Human Rights for Women

In this article, we examine the continuity of harms and traumas experienced by women before, during and after war and other mass violence. We focus on women because of the particular challenges they face in accessing justice due to patriarchal structures and ongoing discrimination in the political, economic and social, as well as legal spheres, and because of the gendered nature of the crimes and harms they experience. We use the four key pillars of transitional justice identified by the United Nations as a framework to analyse how these harms are addressed in the context of criminal prosecutions, truth commissions, reparations and institutional reform. We conclude that a gender-transformative approach to transitional justice that focuses on transforming psychosocial, socioeconomic and political power relations in society is needed in order to attain human rights for women and build a sustainable peace.     

Transitional Justice and ‘National Ownership’: An Assessment of the Institutional Development of the War Crimes Chamber of Bosnia and Herzegovina

In anticipation of its closure in 2014, the International Criminal Tribunal for the former Yugoslavia has begun to set out proposals for preserving and promoting its legacy of prosecuting persons responsible for violations of humanitarian law during the conflicts of the 1990s. A key aspect of this legacy has been to support the ‘national ownership’ of the justice systems in the former Yugoslavia that will continue to try war crimes cases in the years to come. This study explores the institutional development of the War Crimes Chamber of the Court of Bosnia and Herzegovina (WCC) to national ownership. In particular, it considers three critical aspects of the WCC's functioning that highlight the challenges that it faces as a mechanism of transitional justice in Bosnia and Herzegovina (BiH). These are the composition of prosecutors and judges, prosecutorial practices and outreach and communication activities. The article shows that the continued difficulties with these areas of legal practice figure as significant obstacles to the WCC's transition to full national ownership by both the legal professionals and local populace of BiH.     

From Passive Objects to Active Agents: A Comparative Study of Conceptions of Victim Identities at the ICTY and ICC

Contemporary developments in international criminal justice have led to new systems of victims' rights and redress. A number of studies have identified the processes of victim protection, participation, and reparations at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC). However, little attention has been paid to how these changing practices have served to constitute victim identities. This article seeks to address this gap in scholarship through an analysis of the changing definitions, status, and integration of victims into these institutions. It explores how institutional practices serve to construct victims as either “passive objects” or “active agents” of the law. It then considers whether this “active agent” translates to ideas of the person in all social contexts. The article argues that the ICC needs to consider whether victims hold the necessary personal, material, and social “resources” required to action their rights in this institutional context.     

Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY

This article examines how international institutions serve to diffuse human rights norms and create judicial capacity building in post-conflict societies. Specifically, we examine how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative have influenced the reform of domestic courts in Bosnia and Herzegovina (BiH). We place these reforms within the broader debate over restructuring the complex system of government in BiH. Since 2005, domestic courts in BiH have had jurisdiction over the following: (1) Cases which were initially under the jurisdiction of the domestic courts but remanded to the ICTY and recently returned to BiH. (2) Cases which originated at the ICTY and have been transferred to the State Court, and (3) new cases which originated and remained in the domestic court system. We find that while human rights norms have been incorporated into the new legal code, the diffusion of these human rights norms has been inadequate because of the lack of judicial capacity building. While some courts in the capital enjoy significant resources, the vast majority of cases will be tried at provincial courts which are under-funded and unable to prosecute the significant number of cases. Moreover, the government structure of BiH has had a decidedly negative impact on the prosecution of these cases. Ultimately, the rule of law requires consistency of approach and funding to protect human rights throughout the state.

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The power of international criminal courts: Strategic behavior and accountability networks

International criminal courts are often given mandates without the authority or resources to enforce those directives. Given this, how do they achieve their objectives? We argue that in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY), the court strategically developed an accountability network comprised of governmental and nongovernmental actors, using its expertise and position to provide information and a framework of accountability. Simultaneously, it reached out to a range of actors to ensure that governments and international organizations would push Balkan states to cooperate with the ICTY, thereby amplifying the court's power. Utilizing correspondence data, we create a unique dataset that traces the development of this accountability network, demonstrating how this institution engaged networks to pursue its goals. In general, we demonstrate that, although institutions may lack compulsory power, they can engage in strategic behavior using networks to project their productive power.     

(Sex) Crime and Punishment in the #MeToo Era: How the Public Views Rape

One of the core tasks of a well-functioning state is providing fair and adequate criminal justice. Recent events have raised concerns that the US exhibits a “culture of rape,” wherein victims are often disbelieved and blamed. Scholars have not yet examined how the public understands rape and how it should be punished, despite the important role that public pressure has played in the #MeToo era. We present an empirical conceptualization of rape culture to generate predictions for how various attributes of rape incidents affect the likelihood that they are perceived as punishable crimes. In a series of conjoint experiments, we demonstrate that details relating to the victim’s consent and credibility significantly decrease participants’ propensities to support reporting to police or to recommend a severe punishment for the perpetrator. The results show that emphasizing certain legally irrelevant features of rape strongly affect whether the public views an incident as severe or worthy of punishment.

     

渎职犯罪中追诉时效适用的疑难问题探析

在渎职犯罪中,因不法行为与危害结果之间通常会存在一定的时间间隔,而且其中存在大量的情节犯,因此,追诉时效的认定是司法实务工作中的难点。通过建立类型化的分析方式,根据不同形态的渎职犯罪结构上的差异,即成犯与隔隙犯、状态犯与继续犯等犯罪形态的不同,确定相应的追诉时效起点和期限的判断标准,对于指导司法实践具有重要的意义和价值。