Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law

2020 ◽  
Vol 33 (1) ◽  
pp. 145-181
Author(s):  
Itamar Mann
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Activity ◽  
International Criminal Law ◽  
Criminal Cases ◽  
Legal Rules ◽  
Normal Character ◽  
Mass Atrocity ◽  
The Law ◽  
The One

Atrocities are often unprecedented and identifying them therefore may require moral and political judgement, not only the application of legal rules. Consequently, potential defendants charged for perpetrating them may be genuinely unable to recognize the law that prohibits their criminal activity. Starting from its classical treatment in Hannah Arendt’s Eichmann in Jerusalem, this problem has perplexed scholars who have noted the seemingly normal character of defendants in mass atrocity cases. In disagreement with other scholars in the area, I argue for a recognition of a “mistake of law”? defense in international criminal law. The Article demonstrates the stakes of the claim through three hypothetical international criminal cases with different political underpinnings, all pertaining to burning contemporary concerns: cases against individuals responsible for the enormous risks of climate change; against abusers of migrants in the context of border enforcement; and against individuals responsible for the termination of pregnancies in abortion clinics. I argue for a dual approach: on the one hand, prosecutors and judges must constantly leave open the possibility of a radical departure from extant doctrine and precedent in charging individuals. On the other, they must recognize that defendants may reasonably not be able to recognize the law qua law, especially when such departures occur. The internal tension between these two imperatives sheds light on the predicament of international criminal adjudication. A recognition of the proposed mistake of law defense is but a modest doctrinal solution for a much more fundamental perplexity of the discipline. Yet it is especially crucial today, with an ever-clearer normative divergence among actors in the “international community.”?

The “Kouwenhoven” Case

2019 ◽  
Vol 181 ◽  
pp. 568-704
Keyword(s):  
Criminal Law ◽  
Armed Conflict ◽  
International Criminal ◽  
Criminal Liability ◽  
Criminal Activity ◽  
War Crimes ◽  
International Criminal Law ◽  
Post Conflict ◽  
Arms Embargo ◽  
Witness Statements

Economics, trade and finance — Economic sanctions — Liberia — UN Security Council Resolutions 1343 (2001) and 1408 (2002) — Implementation of arms embargo under Dutch law — Whether sanctions regime violatedInternational criminal law — Difference between perpetrator and accomplice liability — Complicity in war crimes — Requirement that defendant promoted or facilitated the commission of war crimes — Conditional intent — Whether defendant consciously accepted the probability that war crimes would be committed in connection with his material support — Risk of doing business with a government engaged in international criminal activityInternational criminal law — Evidence — Admissibility and weight of witness statements — Factors relevant to assessing witness statements obtained in post-conflict environment — Coercion of witnesses — Whether inconsistencies in witness statements requiring acquittalInternational criminal law — Circumstances excusing unlawful conduct — National emergency — Whether violations of arms embargo and laws and customs of war justified by right to self-defence under international lawJurisdiction — Universal jurisdiction — War crimes — Prosecution of a Dutch national for offences committed abroad — Whether conduct of investigation by Dutch authorities making prosecution inadmissible — Whether amnesty scheme in Liberia barrier to prosecution — No violation of fair trial rightsWar and armed conflict — Existence of armed conflict — Whether armed conflict international or internal — Limited gap between norms applicable to international versus non-international armed conflict — Whether violations of laws and customs of war giving rise to individual criminal liability under Dutch law — The law of the Netherlands

II Concept, Function, and Sources of International Criminal Law

2021 ◽  
Author(s):  
Ambos Kai
Keyword(s):  
Criminal Law ◽  
Critical Analysis ◽  
International Criminal ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
International Treaty ◽  
Customary International Law ◽  
General Goals ◽  
The One ◽  
Legal Concepts

This chapter lays the conceptual groundwork for the following chapters, and is written in a both philosophical and jurisprudential ink. It starts with a critical analysis of international criminal law as both concept, discipline and placeholder for an anti-impunity agenda. Certain types of crimes are separated into core crimes on the one hand and treaty-based/transnational crimes and supranational crimes on the other hand. The chapter then proceeds along the lines of the jurisprudential foundations of crime, criminal law and punishment. The author advocates for an autonomous punitive power of the international community as the basis of an autonomous international criminal law. Criminalization is based on the protection of fundamental legal interests or the prevention of serious harm. Punishment has an expressive, norm-stabilizing purpose and is intertwined with more general goals of International Criminal Justice. International Criminal Law’s sources range from customary international law over international treaty law to general principles. The DNA of the chapter is thus an amalgamation of comparative legal concepts with the peculiarities of a ius puniendi that lies at the hear of enterprise of international criminal law.

Responsibility to Protect in International Criminal Law

Postgenocide ◽  
2021 ◽  
pp. 112-134
Author(s):  
Jobair Alam
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Minority Group ◽  
Responsibility To Protect ◽  
International Criminal Law ◽  
National Politics ◽  
Mass Atrocity ◽  
Jus Cogens ◽  
Atrocity Crimes ◽  
Normative Foundations

This chapter considers the worst contemporary state-led prosecution of a minority group, which amounts to genocide, namely the Rohingya. It examines the atrocity crimes committed against them under international criminal law (ICL) and the application of Responsibility to Protect (R2P) thereupon. It suggests that such atrocities are constitutive of violations of jus cogens which warrants obligatio erga omnes. Accordingly, the perpetrators can be brought to justice under inter/national and universal jurisdictions, which, nonetheless, has not yet occurred. Given the failure of ICL mechanisms, the normative foundations of the R2P can provide valuable tools for intercepting mass atrocity crimes. The Rohingya—who face direct and structural violence at the hands of the Myanmar state—need protection from these crimes. The chapter explains how insular national politics can undo the gains made by the international community in upholding the distinctiveness of humanitarian claims through the application of the R2P.

scholarly journals Globalizing Justice, Homogenizing Sexual Violence: The Legacy of the ICTY and ICTR in terms of Sexual Violence

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 214-219
Author(s):  
Kelly-Jo Bluen
Keyword(s):  
Sexual Violence ◽  
Criminal Law ◽  
International Criminal ◽  
Critical Role ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Gender Based Violence ◽  
Gender Based ◽  
And Gender ◽  
The One

In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is now commonsense that rape is and must be a war crime.” This line distills the complexity of the legacies of the tribunals regarding sexual and gender-based violence. On the one hand, it articulates the critical role of the tribunals in cementing the idea that sexual violence, hitherto largely relegated to indifference in international criminal law and policy frameworks, is worthy of international attention. Simultaneously, it encapsulates the ways in which the tribunals’ jurisprudence has been received globally to narrate a narrow conception of conflict-related sexual violence as a “weapon of war” or committed as part of “strategic” conflict-related goals. In fact, there is little that constitutes common sense about sexual violence in conflict, nor is it always, or even most predominantly, committed as a war crime, crime against humanity,or in pursuit of genocide as envisaged by international criminal law. Various studies suggest that sexual violence in war takes many forms and causalities with differentiation across and within conflict contexts.

The Law of Sentencing in International Criminal Law: The Purposes of Sentencing and the Applicable Method for the Determination of the Sentence

2001 ◽  
Vol 4 ◽  
pp. 87-127 ◽  
Author(s):  
Jan Christoph Nemitz
Keyword(s):  
Criminal Law ◽  
Justice System ◽  
International Criminal ◽  
International Criminal Law ◽  
Law Of Nature ◽  
Objective Understanding ◽  
The Law ◽  
And Control ◽  
Legal Grounds

‘Sentencing is an art and not a science’. This statement of Lord Lane expresses, with all due respect, what sentencing should not be. Although it cannot be denied that the process of determining a sentence is far from being a mathematical exercise, the result of which can be verified or falsified by reference to some unquestionable law of nature, both the legislator and the judiciary must strive for the development of a law of sentencing which is based on a comprehensive set of statutory provisions. The very term ‘lawof sentencing’ indicates that the meting out of a sentence is more than the exercise of a skill that only judges are vested with. The use of the term ‘art’, conversely, to describe sentencing gives the impression that the act of sentencing is beyond objective understanding and control. When we speak of art, we acknowledge that while views on the outcome can be manifold, objective criteria for a ‘correct’ assessment are few: there's no accounting for taste. This is unacceptable when looking at the significance of the law of sentencing for the pursuit of various sentencing purposes. To base the determination of the sentence on legal grounds enhances the review possibilities with regard to sentencing judgments. This contributes to an even sentencing practice, which in turn leads to just and comprehensible sentencing judgments. Such a practice is necessary in order to achieve public acceptance of the criminal justice system in general and of sentencing verdicts in particular. Such acceptance is imperative for the achievement of several sentencing purposes, especially that of affirmative (or positive) general prevention.

Hannah Arendt’s Philosophy of Law Approach to International Criminal Law

2014 ◽  
Vol 14 (4-5) ◽  
pp. 695-716 ◽  
Author(s):  
Peg Birmingham
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Philosophy Of Law ◽  
Legal Principles ◽  
Systematic Philosophy ◽  
The Status ◽  
The Law ◽  
The Difference ◽  
Political Principles

My argument in this article is that Hannah Arendt has a coherent and well-developed, although not systematic, philosophy of law which she brings to the Eichmann trial specifically and to international criminal law generally. In Part One of the article, I lay out Arendt’s philosophy of law, focusing on her account of the difference between the Greek and Roman conceptions of the law, the status of the consensus iuris, and the status of legal principles. Part Two offers a comparison of Arendt’s and Dworkin’s legal and political principles that animate the law. Part Three takes up Arendt’s approach to international criminal law through an analysis of her report of the Eichmann trial, specifically her account of the unprecedented nature of crimes against humanity, the new type of criminal who commits administrative massacres, and the difference between the criminal and the political trial at the international level.

scholarly journals Transfer of cases from the International Criminal Tribunal for Rwanda to Domestic Jurisdictions

2012 ◽  
Vol 5 (2) ◽  
pp. 147-180
Author(s):  
Alex Obote-Odora
Keyword(s):  
Death Penalty ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Standards ◽  
International Criminal Law ◽  
Positive Development ◽  
High Standards ◽  
The One ◽  
Hand Opening

Abstract The article examines Rule 11bis on the transfer of cases from the Rwanda Tribunal to domestic jurisdictions. It discusses the criteria for transfer under Rule 11bis and reflects on reasons for the denial of all the Prosecutor’s requests for transfer except in the recent Uwinkindi’s Appeals Chamber decision. The article also examines how the Appeals Chamber resolved the ambiguity between the Death Penalty Law vis-à-vis Imprisonment in Isolation in Munyakazi, on the one hand, and ambiquity in Article 59 of the Rwanda Code of Criminal Procedure (“RCCP”) vis-à-vis Articles 13(10) and 25 of the Transfer Law, on the other hand, opening the way for the transfer of Uwinkindi to Rwanda. The article recognizes the high standards the Appeals Chamber has established for the transfer of cases to domestic jurisdictions and notes that only few States satisfactorily meet these requirements. In sum, the article welcomes the Uwinkindi decision and recognises a positive development in international criminal law and procedure. However, it also cautions that in practice the precedent may not necessarily translate into a flood of cases being transferred to Rwanda because many States will not be able to meet the Rule 11bis high international standards.

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