Memorializing Dissent: Justice Pal in Tokyo

Street Art ◽

Criminal Trials ◽

Military Tribunal ◽

The Aesthetic ◽

Second World

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be sure, but they cannot micromanage the outreach of others. And the outreach of others may look and sound strikingly different than that curated and manicured by courts. This essay presents one such othered outreach initiative: a memorial in Tokyo dedicated to Justice Radhabinod Pal of India, who authored a vehement dissent at the International Military Tribunal for the Far East (IMTFE). The IMTFE was established in 1946 to prosecute Japan's leadership in the aftermath of the Second World War. Pal would have acquitted each defendant. This essay describes Justice Pal's legal philosophy, situates his place in the currents of international law, and reflects on the broader role of memorials as discursive sites.

The Historical Function of International Criminal Trials: Re-thinking International Criminal Law

Nordic Journal of International Law ◽

10.1163/1571810043083397 ◽

2004 ◽

Vol 73 (4) ◽

pp. 461-484 ◽

Cited By ~ 6

Author(s):

Daniel Joyce

Keyword(s):

Criminal Law ◽

Due Process ◽

International Criminal ◽

Criminal Court ◽

Criminal Trials ◽

Social Recovery ◽

Historical Function ◽

AbstractThe establishment of the International Criminal Court provides an opportunity to re-think international criminal law and procedure, and to develop a more coherent theory of international criminal justice. This article argues that increasingly the demands placed upon international criminal trials go beyond the process of securing convictions. There is an increasing expectation that such trials will contribute to broader processes of social recovery and reconciliation. Claims are also made for their having a pedagogical and documentary role. To this end, the author proposes the recognition of an historical function of international criminal trials. This is suggested as best forming part of the variety of policy rationales which underpin the processes of international criminal law. It is conceded that overemphasising the role of history could be dangerous and infringe upon the rights of the accused, but it is argued that underemphasising the role of theory and history is unsatisfactory. The article concludes that recognition of an historical function for international criminal trials involves tensions, but will provide a framework and rationale for a more narrative-based and victimfocused system of international criminal law which might provide an important discursive beginning for victims and affected communities, whilst balancing due process concerns.

The trial’s the thing: Performance and legitimacy in international criminal trials

Theoretical Criminology ◽

10.1177/1362480618806923 ◽

2018 ◽

Vol 24 (2) ◽

pp. 241-257

Author(s):

Kate Leader

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Court ◽

Criminal Trials ◽

And Performance ◽

The Relationship ◽

This article explores the relationship between performance and legitimacy in international criminal trials through the lens of the International Criminal Court (ICC). I begin by analysing the deployment of theatrical tropes by different legal scholars, such as Hannah Arendt, and David Luban, arguing that such analogies serve as a policing mechanism for the author to distinguish what they perceive to be the ‘good’ or ‘bad’ theatre of the trial. I then move beyond analogy, drawing on legal sociology and performance theory to read the criminal trial as ritual-like, normative performance. Using the ICC as a case study, I will examine how performance is deployed to create, reinforce and naturalize the role of the ICC in international criminal law. Through focusing on issues of performance and community I offer a different way of looking at what may constitute legitimacy in international criminal law from that which is offered by other legal scholars.

s.V Modalities, Ch.21 From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability

The Oxford Handbook of International Criminal Law ◽

10.1093/law/9780198825203.003.0022 ◽

2020 ◽

Author(s):

Mohamed Saira

Keyword(s):

Criminal Law ◽

International Criminal ◽

Criminal Liability ◽

Criminal Organizations ◽

Military Tribunal ◽

Mass Atrocity ◽

Atrocity Crimes ◽

Missed Opportunity

This chapter considers the lost legacy of the concept of criminal organizations in international criminal law. When the notion of declaring the criminality of organizations, in addition to determining the guilt of individuals, was first proposed in anticipation of the trial before the International Military Tribunal at Nuremberg, organizational criminality was viewed as an opportunity both to recognize the role of organizations in nurturing mass criminality and to facilitate the prosecution of masses of individuals. But by the time the Tribunal was in operation, the first of these goals had faded away, and organizational criminality represented nothing more than a tool to accomplish individual criminality. This chapter argues that treating criminal organizations as a means to secure individual criminal liability represents a loss, a missed opportunity, in international criminal law. The condemnation of organizations that can attend organizational liability could have created within international criminal law an opportunity to expose the role of organizations in the perpetration of mass atrocity, to call attention to and analyze the institutionalized nature of mass atrocity crimes, which makes these crimes not only unthinkably destructive, but also inherently and importantly distinct from criminal wrongdoing in which a person’s conduct diverges from the standards of most of society. The missed opportunity of abandoning criminal organizations liability is particularly acute, this chapter contends, in light of the research in the decades since Nuremberg establishing how organizations affect individual behaviour. With greater understanding about the mechanisms for individuals’ desire to conform with peers, to obey authorities, and to rationalize their own actions, we can now see that organizations contribute to individuals’ decisions to commit crimes by providing forums and creating environments in which individuals come to believe that criminal behaviour is necessary or normal or even good, or in which individuals fail to recognize their own part in a criminal system. The organizations thus provide not only the machinery for atrocity, but also the motivation. By abandoning the substantive core of criminal organizations, international criminal law fails to identify the foundational role of organizations in creating mass atrocity crimes.

s.V Modalities, Ch.20 The Right to Truth in International Criminal Law

The Oxford Handbook of International Criminal Law ◽

10.1093/law/9780198825203.003.0021 ◽

2020 ◽

Author(s):

Bilsky Leora

Keyword(s):

International Criminal ◽

Criminal Court ◽

Human Rights Law ◽

Criminal Trials ◽

The Right ◽

Personal Interests ◽

This chapter asks whether victims have a ‘right’ to the truth, and if they do, whether international trials are the appropriate vehicle for vindicating that right. Many have argued for a limited role for international criminal trials, focused exclusively on the fate of individual defendants, while others seek to subordinate criminal trials to larger, historiographic goals of constructing a definitive record of atrocities and other violations. The chapter reframes these debates around the concept of ‘victim rights’, especially since the Rome Statute provides a privileged place for victims in the procedural mechanics of the International Criminal Court. The argument here is then developed through discussion of four areas of doctrine: the victims’ ‘personal interests’ in the determination of guilt, the recharacterization of charges against the defendant, the right of victims to introduce evidence, and victims’ obligation to disclose exonerating evidence. The chapter concludes that these developments, combined with the role of human rights law, has ushered in an ‘emerging truth regime’.

Expressing what? The stigmatization of the defendant and the ICC’s institutional interests in the Ongwen case

Leiden Journal of International Law ◽

10.1017/s0922156520000539 ◽

2020 ◽

pp. 1-23

Author(s):

Liana Georgieva Minkova

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Northern Uganda ◽

International Criminal Justice ◽

Criminal Trials ◽

Operation Risk ◽

International Criminal Trials ◽

Empirical Contribution ◽

Selection Of

Abstract The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.

The Birth of Atrocity Speech Law Part 1

10.1093/acprof:oso/9780190612689.003.0004 ◽

2017 ◽

Author(s):

Gregory S. Gordon

Keyword(s):

Ad Hoc ◽

International Criminal ◽

Hate Speech ◽

Criminal Court ◽

Crimes Against Humanity ◽

Genocide Convention ◽

International Military Tribunal ◽

Military Tribunal ◽

Comparable Control

Chapter 3 considers the initial choices made by the newly formed body of international criminal law vis-à-vis atrocity speech. The framers of the Nuremberg International Military Tribunal (IMT) recognized that Nazi barbarities were rooted in propaganda. Article 6(c) of the IMT Charter”(and a comparable Control Council Law No. 10 provision) permitted prosecutors to charge “crimes against humanity” against Nazi defendants, including Julius Streicher and Hans Fritzsche (before the IMT) and Otto Dietrich (before an American tribunal). This novel offense criminalized certain heinous acts committed against civilians that were outside the ambit of war crimes, including hate speech as persecution. The chapter then considers the origins of the Genocide Convention and its pioneering formulation of the incitement crime. Finally, it examines the ad hoc tribunal statutes and the Rome Statue of the International Criminal Court, each of which criminalizes incitement to genocide, persecution as a crime against humanity, instigation, and ordering.

Defining Hate Speech

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa023 ◽

2020 ◽

Vol 18 (1) ◽

pp. 31-57

Author(s):

Audrey Fino

Keyword(s):

Ad Hoc ◽

International Criminal ◽

Hate Speech ◽

International Crime ◽

Causal Connection ◽

International Human Rights Law ◽

International Criminal Tribunals ◽

Military Tribunal ◽

Violent Acts

Abstract This article looks at the international criminal law on hate speech that falls short of direct and public incitement to commit genocide. Using the most egregious form of hate speech that has been prosecuted as an international crime — that of direct and public incitement to genocide — as a baseline, the author analyses the legal parameters of hate speech as persecution (a crime against humanity) and hate speech as instigation (a mode of liability). In so doing, the author critically reviews the International Residual Mechanism for the International Criminal Tribunals’ (IRMCT) appeal judgment in the Šešelj case (Šešelj Appeal Judgment) in the light of prior case law of the International Military Tribunal of Nuremberg (IMT) and the International Criminal Tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY respectively). The author submits that a plain reading of the Šešelj Appeal Judgment supports the view that it is only the more extreme form of incitement to violence, incitement to commit crimes, followed by actual violent acts, that may constitute hate speech amounting to the crime of persecution: incitement to discrimination or incitement to hatred as such do not qualify. Whether ‘incitement to violence’ absent the commission of crimes could qualify as persecution (a crime against humanity) remains an unsettled point. With regard to hate speech as instigation, the Šešelj Appeal Judgment’s restatement and application of the law causes less controversy: the substantial causal connection required for instigation was found to be direct in the circumstances of that case — even though directness is not a legal requirement for instigation. The author concludes that both these interpretations of hate speech are consistent with the earlier ad hoc tribunals’ jurisprudence and, more generally, with international human rights law which, with some controversial exceptions, allows criminalization only of the most extreme forms of incitement to violence.

Towards Restorative Sentencing in International Criminal Trials

International Criminal Law Review ◽

10.1163/156753609x12507729201390 ◽

2009 ◽

Vol 9 (5) ◽

pp. 809-832 ◽

Cited By ~ 1

Author(s):

Ralph Henham

Keyword(s):

Transitional Justice ◽

International Criminal ◽

Judicial Discretion ◽

Discretionary Power ◽

Criminal Trials ◽

Post Conflict ◽

Trial Outcomes ◽

Trial Structure ◽

AbstractThis article considers how sentencing might be re-conceptualised if restorative justice became a more integral part of the rationale for international criminal trials. More specifically, it focuses on issues of admissibility and proof; trial structure; procedural justice; the role of victims and trial professionals, and the role of judicial discretionary power in sentencing decisions. The paper concludes by suggesting that change is possible by utilising judicial discretion as a force for developing more restorative trial outcomes and dealing effectively with inconsistency, appeal and the enforcement of sentences. More broadly, such changes should be seen as an opportunity for international trial outcomes to engage more directly with the challenges of facilitating transitional justice in post-conflict states.

INTERNATIONAL CRIMES WITHIN THE JURISDICTION OF INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS

International Journal of Legal Studies ( IJOLS ) ◽

10.5604/01.3001.0012.2220 ◽

2017 ◽

Vol 2 (2) ◽

pp. 71-84

Author(s):

Magda Olesiuk-Okomska

Keyword(s):

International Law ◽

International Criminal Court ◽

International Criminal ◽

Far East ◽

Criminal Court ◽

Court System ◽

Criminal Courts ◽

International Crimes ◽

Military Tribunal ◽

Massive Scale

Although in international law responsibility traditionally had belonged to states, along with involvement of individuals in conflicts between states and committing by them crimes on a massive scale, a need to criminalize such acts and to bring offenders guilty of the most serious violations of international law to justice - arose. Establishment of international criminal courts resulted from the need to fulfill internationally the idea of justice. Development of international criminal courts reflects differences in inter alia attitude towards ratione materiae of particular courts and tribunals. The purpose of this article is to present and discuss international crimes within the jurisdiction of international criminal courts and tribunals. A typology of international criminal courts was indicated and the most important courts and tribunals were presented in detail. The paper discusses subject jurisdiction of International Military Court in Nuremberg and International Military Tribunal for the Far East in Tokio, the first international courts established to bring war criminals to justice; as well as the subject jurisdiction of the International Criminal Court, the only permanent court in international criminal court system, having universal jurisdiction. Four categories of the most serious crimes of international concern were considered, and doubts concerning subject jurisdiction of the International Criminal Court, as well as its functioning in general, were signalized.

Literaturrevolution in Continental Jewish Aesthetics

Arcadia - International Journal for Literary Studies ◽

10.1515/arcadia-2016-0005 ◽

2016 ◽

Vol 51 (1) ◽

Cited By ~ 1

Author(s):

Sami Sjöberg

Keyword(s):

Second World War ◽

Jewish Literature ◽

East Central ◽

Jewish Thought ◽

The Social ◽

European Jewish ◽

The Aesthetic ◽

East Central European ◽

Second World

AbstractThe German term Literaturrevolution, associated with the modern period in literature, covers various aesthetical ideas and ideologies revolving around the notion of revolution. Concerning revolt, Literaturrevolution entails a radical reinterpretation of the relation between art and reality as it charts the role of art during the socio-political upheavals of modernity. The article traces the variety of readings of the notion of revolution present in francophone and germanophone Jewish literature and meta-literary discussions in Europe from the early 1900s until the outbreak of the Second World War. It accounts for the reception, adaptation, and utilization of revolutionary discourses among expressionists and dadaists of Jewish origin. The motivation to focus on Jewish thought in particular derives not only from its peculiarities but also from its discursive plurality. This plurality is already evident in Gustav Landauer’s Die Revolution (1907), which captures the manifoldness of reformist ideas in East-Central European Jewish thought. In the wake of his book, the aesthetic, religious-ecstatic, and socio-political aspects of revolution overlapped and amalgamated. The multifaceted conceptions of revolt are particularly noticeable in the Jewish manifestations of Literaturrevolution as they placed the aesthetical with the social in parallel, evoking both socialist and fascist conservative opposition.