A Cosmopolitan Liberal Account of International Criminal Law

2013 ◽  
Vol 26 (1) ◽  
pp. 127-153 ◽  
Author(s):  
DARRYL ROBINSON
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Legal Systems ◽  
The Individual ◽  
New Framework

AbstractIn this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.

Double Criminality in Extradition Law

1993 ◽  
Vol 27 (1-2) ◽  
pp. 288-296 ◽  
Author(s):  
Lech Gardocki
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Common Denominator ◽  
Legal Systems ◽  
Criminal Proceedings ◽  
The Common

1. The principle of double criminality is traditionally bound with institutions of international criminal law. Double criminality is a requirement not only with extradition, but also with the transfer of criminal proceedings and with execution of foreign sentences. International criminal law employs a range of “double conditions”, the common denominator of which is the requirement that two legal systems share a certain set of values or legal prescriptions. In addition to double criminality, international law uses such terms as “double punishability”, the “double possibility of criminal proceedings” and the “double possibility of the execution of penal judgment”. Among these concepts, double criminality is the most important and universal condition applied in the basic institutions of international criminal law, such as extradition, the transfer of proceedings, and the execution of foreign penal judgments.

Coordinating concurrent legal orders in the prosecution of international crimes

2013 ◽  
Vol 2 (2) ◽  
pp. 316-344
Author(s):  
BEATRICE I. BONAFÉ
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Interesting Case ◽  
International Criminal Law ◽  
International Crimes ◽  
The Individual ◽  
The Relationship

AbstractInternational criminal law provides a particularly interesting case study for the proliferation of legal orders as it helps to understand the types of uncertainties their interaction may entail with respect to the position of the individual as well as the solutions that may be adopted in that respect. This article analyses a selected number of substantive and procedural uncertainties that originate in the relationship between international criminal law and domestic legal orders. The purpose of the discussion is to identify the particular legal devices that have been elaborated in order to ensure the coordination between these legal orders, and to suggest areas in which a better coordination is still to be achieved.

An International Conscience Collective? A Durkheimian Analysis of International Criminal Law

2007 ◽  
Vol 7 (4) ◽  
pp. 561-619 ◽  
Author(s):  
Salif Nimaga
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Founding Fathers ◽  
International Criminal Tribunals ◽  
Nation States ◽  
Theoretical Perspectives ◽  
Recent Developments ◽  
The Individual ◽  
Cult Of The Individual

AbstractThis socio-legal approach to international criminal law is informed by the writings of Émile Durkheim, one of the founding fathers of (legal) sociology. On the basis of a comprehensive review of primary sources and recent developments in secondary writings, Durkheim's understanding of criminal law and its sanctioning process are reconstructed. From this perspective the international criminal justice system is analysed both directly and indirectly. The first is a sociological interpretation that perceives international criminal law as being rooted in the cult of the individual. The second brings a clarification of the function international criminal tribunals perform and concludes that this cannot be adequately appraised with regard to effects on individuals or nation-states but only with regard to an emerging global society. This highly original investigation is a demonstration of the enduring relevance of Durkheim's oeuvre and a contribution to the developing diversification of theoretical perspectives on international criminal law.

scholarly journals R. LEMKIN'S CONTRIBUTION TO THE DEVELOPMENT OF MODERN INTERNATIONAL LAW AND INTERNATIONAL CRIMINAL LAW

2021 ◽  
Vol 17 (2 (24)) ◽  
pp. 141-159
Author(s):  
Ewa Salkiewicz-Munnerlyn
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
International Courts ◽  
Residual Functions ◽  
The Icj ◽  
The Individual ◽  
The Impact

This article presents the significance and impact of Lemkin's concept of genocide on the development of international law. We will randomly present the jurisprudence of international courts such as the ICJ,  the  ICC,  the ICTY and the ICTR, which analyzed the concepts of genocide, including cultural heritage crimes. Residual functions of the ICTY, including oversight of sentences and consideration of any appeal proceedings initiated since 1 July 2013, are under the jurisdiction of a successor body, the International Residual Mechanism for Criminal Tribunals  (IRMCT). The article also invites attention to the impact on R2P and the human rights, as well as international state responsibility and the individual responsibility. 

Some Considerations on Why (and How) Criminal Law Should Turn International

2021 ◽  
pp. 1-30
Author(s):  
Sergio Dellavalle
Keyword(s):  
Criminal Law ◽  
Common Good ◽  
International Criminal ◽  
Local Communities ◽  
International Criminal Law ◽  
Second Step ◽  
Sovereign Power ◽  
International Dimension ◽  
The Common ◽  
The Individual

Abstract This article analyses the three theoretical presuppositions for an international dimension of criminal law to be successfully established. The first consists in the redefinition of the concept of sovereignty. Indeed, since sovereign power is usually understood as located within the boundaries of the individual states, it is necessary, for criminal law to turn international, that sovereignty is made compatible with cosmopolitan obligations. On the other hand, the reshaping of sovereignty can only be conceived on the basis of a universalistic understanding of the common good. Accordingly, the second step must lead to the transition from a particularistic to a universalistic idea of the well-ordered society. Thirdly, to avoid a hierarchical and centralized approach to international criminal justice, a notion of universalism should be preferred that, by making it sensitive to pluralism, also advocates an implementation of international criminal law which is prone to empowering national and local communities.

La prisión permanente revisable. Un análisis del argumento internacional

2019 ◽  
pp. 83
Author(s):  
Amparo Martínez Guerra
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Code ◽  
International Criminal Law ◽  
Security Measures ◽  
Life Imprisonment ◽  
Spanish Constitution ◽  
Social Rehabilitation ◽  
The Individual

La Ley Orgánica 1/2015, 30 de marzo de modificación del Código Penal introdujo como nueva pena la prisión permanente revisable tras 25 años. De acuerdo con el art. 25.2 CE, las penas privativas de libertad y las medidas de seguridad estarán orientadas hacia la reinserción y la reducación social. Para defender la constitucionalidad de la nueva pena, el Legislador español acudió a la firma y ratificación del Estatuto de Roma para el establecimiento de la Corte Penal Internacional. Su art. 77.1 b) prevé la imposición de una pena de prisión de por vida cuando así lo justifiquen la extrema gravedad del delito y las circunstancias personales del condenado.The Organic Law 1/2015, 30 march for the amendment of the Spanish Criminal Code introduced as a new penalty the permanent prison with possibility of parole after 25 years. Pursuant to art. 25.2 of the Spanish Constitution, punishments entailing imprisonment and security measures shall be aimed reeducation and social rehabilitation.  In order to support the constitutionality of the penalty, the Legislator argued that Spain signed and ratified the Rome Statute for the establishment of the International Criminal Law. According to art. 77. 1 b)      the Court may imposed a term of life imprisonment when justifed by the extreme gravity of the crime and the individual circumstances of the convicted person.

The Notion of ‘Persuasive Value’ of External Precedent in International Criminal Law

2015 ◽  
Vol 84 (1) ◽  
pp. 29-58
Author(s):  
Aldo Zammit Borda
Keyword(s):  
Criminal Law ◽  
Potential Role ◽  
International Criminal ◽  
International Criminal Law ◽  
Judicial Decision ◽  
Applicable Law ◽  
Playing Field ◽  
The Individual

This article examines the notion of ‘persuasive value’ of external precedent in the context of international criminal law. It finds that, in a number of cases, individual judges have appeared to assess the relevance and persuasive value of the same judicial decision differently and suggests that an assessment of this notion may be contingent on the specific circumstances of the case, including the individual approaches of judges. The article proceeds to flesh out some extrinsic and intrinsic elements of this notion. With respect to the former, these include: (1) the specific attitudes of individual judges; (2) the authority of the forum, including the generalist or specialist character of the court and the potential role of judicial networks; (3) the effect of successive citations; and (4) the potentially uneven playing field of citations. With respect to the latter, these may include: (1) the nature of the law being applied and the consonance of the findings with the applicable law; and (2) the quality of the reasoning. While there potentially may be a link between the quality of reasoning of a given decision and an assessment of its persuasive value, this may depend on the circumstances of the case and, in particular, on the approaches of the individual judges, who may accord differing weight to the elements involved in the equation. Thus, the article concludes that, ultimately, any assessment of the notion of persuasive value may have to remain contingent and incomplete.

scholarly journals THE TRANSPOSITION OF INTERNATIONAL CRIMINAL LAW CONCEPTS INTO NATIONAL JURISDICTIONS: THE CASE OF GENOCIDE

2019 ◽  
Vol 41 ◽  
pp. 71-96
Author(s):  
Marie-Hélène GIRARD
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
International Level ◽  
Legal Systems ◽  
Legal Concept ◽  
Vast Array ◽  
Legal Definition ◽  
Definition Of ◽  
Language And Law

This article discusses preliminary findings of a study on the transposition of the legal concept of genocide into 131 national jurisdictions. The specificities of this transposition into national criminal systems, as well as those related to the international legal definition of genocide, are described in the first part. The communicative situations in which the concept of genocide has been transposed are then examined in order to show their scope and breadth, and to which extent they contribute to the transformation of the concept of genocide. Trends related to the object of transformation in the definition and their effect on meaning are subsequently outlined. The findings point to a situation where, despite having been the object of multiple consensus at the international level, the concept of genocide has been transformed by the vast array of domestic legal languages and legal systems into which it has been transposed and thereby reinforce the relation between the configuration of the language and law, and the difficulty of translation.

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