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Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener
Excuses, Justifications, And Duress At The International Criminal Tribunals, Noam Wiener
Pace International Law Review
This article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application …
International Criminal Law For Retributivists, Alexander K.A. Greenawalt
International Criminal Law For Retributivists, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
Responding to the proliferation of international criminal tribunals during the last two decades, scholars have engaged in a rich debate about the normative foundations of international criminal law (“ICL”). The retributive theory of punishment--which justifies punishment based on the culpability of the accused, rather than by reference to its social benefits--has met with significant skepticism in these discussions. Some have argued that unique features of international criminal justice--for example, the extreme selectivity of punishment or the lack of certain social or political preconditions--are a poor match for retributive theory. Others have ignored retributivism altogether, or afforded the theory only passing …
The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt
The Pluralism Of International Criminal Law, Alexander K.A. Greenawalt
Elisabeth Haub School of Law Faculty Publications
This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …