Law Commons^™

The Hidden Costs Of Strategic Communications For The International Criminal Court, Megan A. Fairlie

Faculty Publications

In little more than a decade, the International Criminal Court (ICC) has received nearly 11,000 requests for its Prosecutor to conduct atrocity investigations around the globe. To date, no such communication has resulted in an official investigation. Nevertheless, the act of publicizing these investigation requests has proven to be an effective, attention-getting tool that can achieve valuable, alternative goals. This fact explains the increasing popularity of “strategic communications” — highly publicized investigation requests aimed not at securing any ICC-related activity, but at obtaining some non-Court related advantage. This Article, which is the first to identify this trend, explains why the …

Achieving Sex-Representative International Court Benches, Nienke Grossman

All Faculty Scholarship

Twenty-five years ago, in this Journal, Hilary Charlesworth, Christine Chinkin, and Shelley Wright argued that the structures of international law “privilege men.”1 As shown in Table 1, which summarizes data from a forthcoming article, on nine of twelve international courts of varied size, subject-matter jurisdiction, and global and regional membership, women made up 20 percent or less of the bench in mid 2015.2 On many of these courts, the percentage of women on the bench has stayed constant, vacillated, or even declined over time.3 Women made up a lower percentage of the bench in mid 2015 than in previous years …

The Victims' Court? A Study Of 622 Victim Participants At The International Criminal Court, Stephen Cody, Eric Stover, Mychelle Balthazard, Alexa Koenig

Suffolk University Law School Faculty Works

When the International Criminal Court (ICC) was created in 1998, its founders hailed it as a “victims’ court,” one that would give survivors of mass atrocity an influential voice in the administration of justice. In the nearly two decades since its establishment, thousands of victims have been registered as “victim participants,” and thousands more have applied to the court for acceptance. However, there is now widespread agreement, both inside and outside of the court, that the ICC victim participation programs need reform. Court staff and outside observers have argued that current levels of outreach, care, and support are inadequate and …

Some Thoughts On A Record-Breaking 2014/15 Season For Singapore’S International Mooters, Siyuan Chen

Research Collection Yong Pung How School Of Law

Singapore has an extremely proud tradition in international moot court competitions. The famous NUS’82 team which won Singapore’s first Jessup championship comprised members who have all gone on to become Senior Counsel; one is now a High Court Judge (Steven Chong) and another, the Attorney-General (VK Rajah). Videos of championship finals featuring Singapore mooters continue to be used as training tools by universities all over the world, especially the 2001 Jessup final featuring the first and only person to have ever won the two largest moots, the Jessup and the Vis. And in that same year (2001), NUS won arguably …

Maturing Justice: Integrating The Convention On The Rights Of The Child Into The Judgments And Processes Of The International Criminal Court, Linda A. Malone

Faculty Publications

No abstract provided.

International Criminal Law: Year In Review 2014-2015, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl's remarks on September 1, 2015, at the Ninth International Humanitarian Law Dialogs held in Chautauqua, New York.

What I do not want to do is review and repeat what has already been said about the international arena. I thought what I would do is boil it down to a couple observations that I have about the activities at the international institutions over the past year, and discuss four elements that have emerged.

One is transition. What I mean by this is that the work of a number of the international institutions is winding …

The Post-Postcolonial Woman Or Child, Diane Marie Amann

Scholarly Works

This essay is based on remarks given as Distinguished Discussant for the 16th annual Grotius Lecture at the 2014 Annual Meeting of the American Society of International Law/Biennial Conference of the International Law Association. The essay examines the international law status of women, on the one hand, and children, on the other, through the contemporary lens of the post-postcolonial world and the historical lens of Hugo Grotius and the colonialist era. In so doing, the essay responds to the principal Grotius Lecture, "Women and Children: The Cutting Edge of International Law," which was delivered by Radhika Coomarswamy, NYU Global Professor …

What Internationals Know: Improving The Effectiveness Of Post-Conflict Justice Initiatives, Elena Baylis

Articles

The field of post-conflict or transitional justice has developed rapidly over the last thirty years. The United States, the United Nations, and many other international organizations, governments, and institutions have contributed to hundreds of international criminal trials and rule of law programs. International staff, known as “internationals,” travel among post-conflict states and international criminal tribunals to carry out these initiatives. In addition to being a field of work, post-conflict justice also constitutes an emergent body of legal knowledge, composed of substantive standards, rules of procedure, best practices, and other elements. Just as the programs and institutions of post-conflict justice have …

New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy

GW Law Faculty Publications & Other Works

Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).

As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

First Responders: An International Workshop On Collecting And Analyzing Evidence Of International Crimes, Andrea Lampros, Alexa Koenig, Julia Rayner, Stephen Cody

Suffolk University Law School Faculty Works

This report presents major points of discussion and recommendations from an international conference held in September 2014 in Salzburg, Austria. Workshop participants discussed how local and international NGOs, journalists, forensic scientists, health professionals, and other “first responders” to war crimes and human violations can most effectively work with courts — and the International Criminal Court (ICC) in particular — in the collection of evidence of serious war crimes, such as genocide and crimes against humanity.

Bearing Witness At The International Criminal Court: An Interview Survey Of 109 Witnesses, Stephen Cody, Alexa Koenig, Eric Stover, Robin Mejia

Suffolk University Law School Faculty Works

This report presents findings from the first interview survey of witnesses who have appeared before the ICC. The survey examined the opinions and attitudes of 109 individuals — ranging from victims to expert witnesses — who testified in the ICC’s first two trials against Thomas Lubanga Dyilo and Germain Katanga.

Searching For The Hinterman: In Praise Of Subjective Theories Of Imputation, Jens David Ohlin

Cornell Law Faculty Publications

How should international courts distinguish between principals and accessories? The ICC answered this question with Roxin’s Control Theory of Perpetration; defendants should be convicted as principals if they control the crime individually, jointly with a co-perpetrator, indirectly via an organized apparatus of power, or as indirect co-perpetrators (via a combination of the previous doctrines). As the ICC adopted the control requirement, however, some of its decisions have allowed lower mental states such as recklessness or dolus eventualis to meet the standard for principal perpetration under the Control Theory. Other decisions have asserted that intent or knowledge is required though their …

Digital Fingerprints: Using Electronic Evidence To Advance Prosecutions At The International Criminal Court, Alexa Koenig, Eric Stover, Camille Crittenden, Stephen Cody

Suffolk University Law School Faculty Works

This report summarizes efforts to improve the collection and use of electronic evidence in atrocity crime prosecutions at the International Criminal Court.

International Law And The Future Of Peace, Diane Marie Amann

Scholarly Works

These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

Function And Dysfunction In Post-Conflict Justice Networks And Communities, Elena Baylis

Articles

The field of post-conflict justice includes many well-known international criminal law and rule of law initiatives, from the International Criminal Court to legal reform programs in Afghanistan and Iraq. Less visible, but nonetheless vital to the field, are the international staff (known as internationals) who carry out these transitional justice enterprises, and the networks and communities of practice that connect them to each other. By sharing information, collaborating on joint action, and debating proposed legal rules within their networks and communities, internationals help to develop and implement the core norms and practices of post-conflict justice. These modes of collaboration are …

Regulation 55 And The Rights Of The Accused At The International Criminal Courts, Susana Sacouto, Katherine Cleary Thompson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

Foreword, The Future Of International Criminal Justice, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

International criminal law attempts to sanction crimes that have a global nature and impact. After World War II, the international community came together to begin addressing important international issues, including preventing future war and non-war related atrocities and crimes. From the International Military Tribunals established in the wake of World War II to the world's first permanent International Criminal Court (ICC), a number of international bodies, treaties, and statutes have been formed in an effort to effectively administer criminal justice on an international level. Yet the administration and application of international criminal justice has faced significant hurdles and there are …

The Icc's Exit Problem, Rebecca Hamilton

Articles in Law Reviews & Other Academic Journals

The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload …

Accountability Of International Prosecutors, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The dilemma of holding prosecutors accountable while ensuring their independence was at the center of the debates surrounding the establishment of the International Criminal Court (ICC). The drafters of the Rome Statute for the ICC understood that the Court would be handling cases with significant political implications and yet working with limited resources and no independent enforcement capacity. To enhance prosecutors’ ability to operate successfully in this environment, the drafters enshrined prosecutorial independence into the Statute and gave prosecutors significant discretion over charging and investigation decisions. At the same time, drafters worried that ICC prosecutors were not sufficiently accountable to …

Assessing The Control-Theory, Jens David Ohlin, Elies Van Sliedregt, Thomas Weigend

Cornell Law Faculty Publications

As the first cases before the ICC proceed to the Appeals Chamber, the judges ought to critically evaluate the merits and demerits of the control-theory of perpetratorship and its related doctrines. The request for a possible re-characterization of the form of responsibility in the case of Katanga and the recent acquittal of Ngudjolo can be taken as indications that the control-theory, is problematic as a theory of liability. The authors, in a spirit of constructive criticism, invite the ICC Appeals Chamber to take this unique opportunity to reconsider or improve the control-theory as developed by the Pre-Trial Chambers in the …

Bargaining Practices: Negotiating The Kampala Compromise For The International Criminal Court, Noah Weisbord

Faculty Publications

At the International Criminal Court's (ICC) Review Conference in 2010, the ICC's Assembly of States Parties (ASP) agreed upon a definition of the crime of aggression, jurisdictional conditions, and a mechanism for its entry into force (the "Kampala Compromise"). These amendments give the ICC jurisdiction to prosecute political and military leaders of states for planning, preparing, initiating, or executing illegal wars, beginning as early as January 2017.

This article explains the bargaining practices of the diplomats that gave rise to this historic development in international law. This article argues that the international-practices framework, as currently conceived, does not adequately capture …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Charles Chernor Jalloh, Melinda Taylor

Faculty Publications

This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

Children And The First Verdict Of The International Criminal Court, Diane Marie Amann

Scholarly Works

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on …

Authority To Proscribe And Punish International Crimes, Guyora Binder

Journal Articles

Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow …

A Janus Look At International Criminal Justice, Diane Marie Amann

Scholarly Works

Invoking the name of Janus, the Roman god who looked simultaneously at the past and the future, this article examines international criminal justice at a watershed moment, when a number of 20-year-old ad hoc tribunals were winding down even as the International Criminal Court was entering its teen years. First explored are challenges posed by politics – that is, the need to secure cooperation from states and from the U.N. Security Council – and economics – that is, the need to work within budgetary constraints. The article then surveys significant developments in each of a half-dozen international criminal courts and …

What Makes A Crime Against Humanity A Crime Against Humanity?, Charles Chernor Jalloh

Faculty Publications

This article examines what makes a crime against humanity a crime against humanity as opposed to an ordinary offense under domestic criminal law. One answer is to say that any systematic or widespread attack against a civilian population which is sponsored, supported or condoned by the State is a crime against humanity. Another interpretation is that any widespread or systematic attacks against civilians which “infringe on basic human values” should be classified as crimes against humanity. This paper will use the Rome Statute and emerging case law of the International Criminal Court (ICC) to argue that neither of the two …

International Law Weekend, American Branch Of The International Law Association Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …