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.     

The Nairobi Declaration: Redefining Reparation for Women Victims of Sexual Violence

This paper explores the contribution of the Nairobi Declarationon the Right of Women and Girls to a Remedy and Reparation tothe problem of delivering justice through reparation programmesfor women victims of sexual violence in conflict situations.It highlights that this civil society initiative is particularlysignificant because it gives voice to women and girls who aresurvivors of sexual violence. Placed in the context of the recentadoption by the United Nations' General Assembly of the BasicPrinciples and Guidelines on the Right to a Remedy and Reparationfor Victims of Gross Violations of International Human RightsLaw and Serious Violations of International Humanitarian Law,the Nairobi Declaration redefines reparation and guides policy-makingto implement the right to reparation specifically for victimsof sexual violence. The concept of reparation as a transformativeand participative process put forward in the Nairobi Declarationconstitutes its most innovative and inspiring contribution.     

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.     

Power,Powerlessness and Petroleum: Indigenous Environmental Claims and the Limits of Transnational Law

Environmental disasters, particularly oil spills, increasingly involve a complex intermingling of the national, international and often the transnational. Traditional responses to seeking remediation have pursued the legal path of class action suits against multinational corporations. This article examines one such historic case, Aguinda v. Texaco, Inc., in which residents of Ecuador's Amazonian rainforest brought suit against Texaco in US federal courts through the legal opening provided by the Alien Tort Claims Act of 1789. Dominant analyses of this case have centered on the failed promise of this law to serve as a human rights tool and view this failure in terms of the sovereigntist limitations on an emerging cosmopolitan order. Against these analyses, this article offers an alternative approach that shifts the focus from the limitations of the law towards a perspective on power. Bringing to bear political science's power debate to develop this perspective on power, the article highlights what analytical tools from this debate are translatable or which are not for understanding the power relations of the Aguinda case. Through this exercise, this article aims to prod a reconsideration of dominant theories of power, developed in a frame of the nation-state, and to provoke their redevelopment to better engage with the complex and dynamic flows of power in cases of environmental justice and politics across borders.     

The Spectre of Crime: Photography,Law and Ethics

A grainy series of surveillance photographs was tendered into evidence at the trial of a young Aboriginal man accused of robbing a bank. Two police officers testified that they recognised him from the photographs. On appeal to the High Court of Australia, the judges thought that the hooded bandit in the image looked like the spectre from Hamlet. This article uses the discourse of “spectrality” to explore the consequences for law and ethics when haunted by the transgressive image. It examines the confrontation between the foundational illegality of the Australian nation, and the indigenous man who is accused of a crime against property.     

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.     

Religious Protection from Populist Violence: The Catholic Church and the Philippine Drug War

Populists often demonize outgroups while undermining institutions that protect citizens against the abuse of state power. Under these conditions, how can vulnerable communities protect themselves? We argue that actors coupling a normative commitment to human rights with the local organizational capacity to intervene can systematically reduce victimization. Focusing on the Philippine Catholic Church in the country's ongoing “drug war,” we identify five potential mechanisms producing protection. Directly, these actors can raise attention, offer sanctuary, or disrupt enforcement, while indirectly they can shrink vulnerable populations and build local solidarity. We evaluate this argument with a mixed-method research design. A new dataset of over 2,000 drug war killings throughout Metro Manila shows that neighborhoods with a Catholic parish experience approximately 30% fewer killings than those without. Original interviews with clergy and laity in these parishes support both direct and indirect mechanisms, with strongest evidence for attention raising and building community solidarity.     

The Informative Power of Treaty Commitment: Using the Spatial Model to Address Selection Effects

The effects of international institutions on state behavior make up a key research agenda in international‐relations scholarship. Because states self‐select into treaties, we cannot infer that these commitments have causal effects unless we address this selection effect. I explain the significant limitations of the methods used thus far to overcome this problem and argue that a more effective approach must take into account states’ treaty preferences. I describe a novel combination of ideal‐point estimation and propensity‐score matching that can estimate the probabilities of treaty commitment and use them to test hypotheses. I use this procedure to test the effects of three key international human‐rights treaties. My results provide significant new findings regarding the effects of these important agreements. I show that the Convention on the Elimination of All Forms of Discrimination against Women has significantly improved respect for women's rights, but that the Convention against Torture and the International Covenant on Civil and Political Rights have not had significant effects on human rights.     

论经济犯罪侦查权的配置

经济犯罪侦查权的配置问题,是近年来侦查学学科内的一个热点问题。其突出表现为,一方面要整合资源,从而保证侦查权最大限度发挥效能;另一方面要求侦查权能够独立行使,从而保证司法公正。笔者试图通过探索,将经济犯罪侦查权进行优化配置,使得上述两方面能够兼得。     

The Limits of Control: The Market State,Divided Power,and the Response to 9/11

ABSTRACT

The 9/11 attacks demanded a response from the U.S. government, but designing and executing that response was not easily done. The United States is an advanced market society in which power is highly dispersed. Federal policymakers were confronted with challenges that we now regard as typical of the network form of governance. Their ability to act decisively was constrained by public law, by the political influence and superior knowledge of private industry, and by widespread skepticism about the legitimacy of federal authority. While many commentators worried about the excessive concentration of power in the federal executive branch after 9/11, it might be more accurate to say that the post-9/11 period was typified by a prolonged, and often unsuccessful, effort to induce cooperation and coordination by a range of public and private actors.     

司法权与法律解释权辨析

司法权是法官在个案中行使的以裁判权为重心的权力,法律解释权是法官在个案中行使的对所适用的法律和所要处理的案件事实进行解释的权力,法律解释权属于司法权的一部分。司法权与法律解释权是同一种性质的权力,二者有许多相同之处。但法律解释权是一种相对独立存在的权力,它与司法权有一定的区别。厘清二者的关系,才能正确适用法律,保证司法公正。