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.     

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 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 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 Impact of Subsequent Customary International Law on Treaties: Pushing the Boundaries of Interpretation?

Conflicts between treaty and customary norms are endemic to international law and are increasingly frequent. Yet there is nothing automatic or mechanical about interpreting and resolving such conflicts, which require a high degree of contextual sensitivity. Their identification and interpretation test the limits of the rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties, particularly where treaty modifications by subsequent customary law are concerned. This article endeavours to sketch how the latter phenomenon occurs, and the interpretative and evidentiary challenges involved—many of which remain underexplored. The analysis begins with the identification and interpretation of newly emerged customary norms, before delving into the process of determining their treaty-modifying potential. This involves the side-by-side interpretation of the pre-existing treaty and the customary norm to assess whether there is a genuine incompatibility that cannot be resolved through harmonious interpretation. The final inductive step is to ascertain the parties’ consent to displace the treaty norm in favour of the customary norm, subject to certain crucial requirements. Against the backdrop of the organic and continuous interplay between treaties and customary international law, these interpretative and evidentiary steps serve to ensure that the parties’ intention remains paramount.

     

Positive Obligations and the International Criminal Tribunals’ Law of Detention: Funding Family Visits and the ICC Presidency’s Ngudjolo Decision

This article addresses the issue of whether the international criminal tribunals are under an obligation to fund family visits for indigent detainees. It examines the concept of positive obligations and its relation to the detention situation and describes the practice of funding family visits as it has developed at the International Criminal Court. It further analyses relevant developments in the Court’s case law. It argues that the Court is indeed obliged to fund family visits. In this regard, the mere recognition of a detainee’s right to family visits in the tribunals’ legal frameworks andin international soft-law penological standards can be said to inadequately reflect the particularities of international detention.

     

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...     

From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment

The article looks at the records of both the United Nations War Crimes Commission (UNWCC) and national courts with respect to the post-World War II prosecution of the crimes of torture and ill-treatment. It illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. The article also discusses the UNWCC’s contribution to the development of relevant international law, both in terms of state practice and precedent. Finally, it acknowledges the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.     

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.

     

Criminal Law, the Victim and Community: The Shades of ‘We’ and the Conceptual Involvement of Community in Contemporary Criminal Law Theory

The article addresses the argument, put forward by Lernestedt, that the proprietor of the ‘criminal-law conflict’ is the community (or the community and the offender) and discusses his proposed theoretical model of criminal law trial. I raise questions regarding the legitimacy of such a model, focusing on four counts. Firstly, I assert that his assumptions about the state the individual and the old/new versions of criminal law theory are society-dependent. Secondly, I address some problems with the concept of community and particularly with the proposed conception of community, which seems to mostly exclude the offender. Thirdly, I question the need for (or added value of) such a proposed conceptual involvement of the community as an actor in the criminal law process and theory. Lastly, some potential problems with the idea of the victim as a mere “representative of us” are mentioned, including the possibly undesirable demands and limitations on the victim’s agency and issues of respect for the victim’s individuality.     

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.     

New Paths in International Criminal Justice?: The Internal Rules of the Cambodian Extraordinary Chambers

The Internal Rules of the Cambodian Extraordinary Chambers adoptedin June 2007 provide some insight into how a non-adversarialsystem might work in the context of a hybrid tribunal with jurisdictionover both domestic and international crimes. This approach presentsvarious novelties, especially with respect to the pre-trialand trial stages of the proceedings, and provides an exampleof integration into a domestic non-adversarial system of principlesderived from international criminal procedure.     

The Constitution of Criminal Law: Justifications, Policing and the State��s Fiduciary Duties

This paper, originally written for a conference on criminal law in times of emergency, considers the implications of the ‘German Airliner case’ for criminal law theory. In that case, the German constitutional court struck down as unconstitutional a law empowering state officials to order the shooting down of a hijacked plane on the grounds that the state could not order the killing of innocent civilians. Some have argued that despite this ruling, individual officials should still be entitled to claim a criminal law justification defence. I argue that the nature of justification defences necessarily ties them to the powers of the state to engage in such activity. I also argue that both the constitutional decision and its criminal law implications are salutary.     

Hate Crimes: The legality and Practicality of Punishing Bias—A Socio-Legal Appraisal

International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique - This paper assesses the extent to which enhancing a penalty for hate crimes is a necessity. It...