The Curious Case of Singapore’s BIA Desertion Trials: War Crimes, Projects of Empire and the Rule of Law

2017 ◽  
Vol 28 (4) ◽  
pp. 1217-1240
Author(s):  
W L Cheah
Keyword(s):  
World War Ii ◽  
Rule Of Law ◽  
War Crimes ◽  
International Criminal Law ◽  
The Rule Of Law ◽  
Legal Standards ◽  
War Crimes Trials ◽  
British Colonial ◽  
Military Law ◽  
The One

Abstract This article critically analyses a set of war crimes trials, conducted by the British colonial authorities in post-World War II Singapore, which dealt, among others, with the contentious issue of deserting British Indian Army soldiers. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in war crimes trials. Although these trials were intended by their organizers to facilitate the return of British colonial rule, they resulted in unexpected acquittals and conviction non-confirmations. On the one hand, by applying British military law as a back-up source of law when prosecuting ‘violations of the laws and usages of war’, the British contravened the rule of law by retrospectively subjecting the Japanese defence to unfamiliar legal standards. On the other hand, by binding themselves to a pre-existing and relatively clear source of law, the British were constrained by the rule of law even as this empowered the Japanese defence. These findings speak to broader debates on the challenges of developing international criminal law, by provocatively suggesting that, from a rule of law perspective, what is most important in a body of law is its clarity, accessibility and comprehensiveness rather than its source or its purported ‘universality’.

Rebel Courts

2021 ◽  
Author(s):  
René Provost
Keyword(s):  
Rule Of Law ◽  
Armed Conflict ◽  
Due Process ◽  
International Criminal Law ◽  
Islamic State ◽  
International Human Rights Law ◽  
Armed Groups ◽  
Diverse Range ◽  
The Rule Of Law ◽  
Legal Standards

Rebel Courts presents an argument that it is possible for non-state armed groups in situations of armed conflict to legally establish and operate a system of courts to administer justice. Neither the concept of the rule of law nor the general principle of state sovereignty stands in the way of framing an understanding of the rule of law adapted to the reality of rebel governance in the area of justice. Legal standards applicable to non-state armed groups in situations of international or non-international armed conflict, including international humanitarian law, international human rights law, and international criminal law, recognise their authority to regularly constitute or establish non-state courts. The lawful operation of such courts is of course subject to requirements of due process, corresponding to an array of guarantees that must be respected in all cases. Rebel courts that are regularly constituted and operate in a manner consistent with due process guarantees demand a certain degree of recognition by international institutions, by states not involved in the conflict, to some extent by the territorial state, and even by other non-state armed groups. These normative claims are grounded in a series of detailed case studies of the administration of justice by non-state armed groups in a diverse range of conflict situations, including the FARC (Colombia), Islamic State (Syria and Iraq), Taliban (Afghanistan), Tamil Tigers (Sri Lanka), PKK (Turkey), PYD (Syria), and KRG (Iraq).

scholarly journals Testing Todd: family types and development

2021 ◽  
pp. 1-18
Author(s):  
Jerg Gutmann ◽  
Stefan Voigt
Keyword(s):  
Rule Of Law ◽  
Civil Society Organizations ◽  
The Rule Of Law ◽  
State Fragility ◽  
Family Types ◽  
Low Levels ◽  
Parsimonious Model ◽  
The One ◽  
High Level

Abstract Many years ago, Emmanuel Todd came up with a classification of family types and argued that the historically prevalent family types in a society have important consequences for its economic, political, and social development. Here, we evaluate Todd's most important predictions empirically. Relying on a parsimonious model with exogenous covariates, we find mixed results. On the one hand, authoritarian family types are, in stark contrast to Todd's predictions, associated with increased levels of the rule of law and innovation. On the other hand, and in line with Todd's expectations, communitarian family types are linked to racism, low levels of the rule of law, and late industrialization. Countries in which endogamy is frequently practiced also display an expectedly high level of state fragility and weak civil society organizations.

Many Doors to International Criminal Justice

2020 ◽  
Vol 23 (1) ◽  
pp. 1-26
Author(s):  
John Braithwaite
Keyword(s):  
World War Ii ◽  
Transitional Justice ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Truth Commissions ◽  
Survivor Guilt ◽  
Truth And Reconciliation ◽  
Complex Sequences

Responsibilities to protect and prevent elite crimes are best energized by enforcement that walks through many doors. Effective deterrence is rarely delivered by the International Criminal Court. Yet deterrence is possible when it patiently cumulates through many doors. Likewise truth, justice, and reconciliation can achieve little through one door and much through many. Opening more doors to the complexly cross-cutting character of survivor guilt with mass atrocities can better open possibilities for future prevention and reconciliation than simply doors to courtrooms that find a criminal on one side of complex sequences of atrocity. The Nuremberg and Tokyo War Crimes Trials opened quickly after World War II. They did not prove to hold keys to truth and reconciliation for Germany until the Eichmann trial finished in Jerusalem in 1962. Why? Still today, non-confession by the U.S. to Hiroshima/Nagasaki as war crimes has meant truncated Japanese reconciliation. Different kinds of doors are needed with crimes like the Dresden and Tokyo fire bombing, the rape of Nanjing and the “comfort women” issue. These have included citizens tribunals, truth commissions, and indigenous justice in cases like Bougainville that rejected the truth commission model. When we reflect upon door diversity, transitional justice turns out not to be very focused on justice or international criminal law, and not to be at all transitional, but rather a maze of doors to justice of diverse kinds that open or close across the longue durée (as developed in the work of Susanne Karstedt).1

scholarly journals Teoria crítica e direito internacional: uma visão pachukaniana de China Miéville

2018 ◽  
Vol 3 (1) ◽  
pp. 158-174
Author(s):  
Luiz Felipe Brandao Osorio
Keyword(s):  
International Law ◽  
20Th Century ◽  
Rule Of Law ◽  
Early 20Th Century ◽  
Critical Legal Studies ◽  
The Rule Of Law ◽  
Legal Studies ◽  
Legal Relationship ◽  
The Face ◽  
The One

RESUMO:Dentro do emaranhado teórico cunhado como teoria crítica do direito, cabe aqui resgatar a sua vertente mais radical, aquela que vai à recôndita essência do fenômeno jurídico, e que consequente perpassa a face em que suas fraturas ficam mais expostas: a teoria materialista do direito internacional. O britânico China Miéville brinda-nos com uma reflexão original sobre a seara internacionalista, partindo e retomando as pistas legadas por Evguiéni Pachukanis, no início do século XX, para atingir o cume da crítica do direito, pela teoria da forma mercantil, ressaltando o caráter violento, de coerção, presente inerentemente na relação jurídica. É neste mundo, o do império do direito, é que reinam a miséria e o horror cotidianos e banalizados. ABSTRACT:Within the theoretical entanglement coined as critical legal studies, it is needed to address its most radical aspect, that goes inside the hidden essence of the legal phenomenon, and which consequently touches the face in which its fractures are most exposed: the materialist theory of international law. British China Miéville brings us an original reflection on the internationalist scenario, starting with and returning to the trails left by the early 20th century by Evguiéni Pachukanis to reach the summit of the critique of law, by the theory of commodity form, emphasizing the violent side, coercive, inherent in the legal relationship. It is in this world, the one of the rule of law, that daily and banal misery and horror reign

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

The State and the Rule of Law

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll
Keyword(s):  
Rule Of Law ◽  
Political System ◽  
The State ◽  
The Political ◽  
The Rule Of Law ◽  
The Law ◽  
Democratic Principles ◽  
Set Up ◽  
The One ◽  
Real Chance

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.

Vergaberecht als Digitalisierungsfolgenrecht

2019 ◽  
Vol 52 (1) ◽  
pp. 65-98
Author(s):  
Christoph Krönke
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Information Technologies ◽  
Public Procurement ◽  
The State ◽  
Effective Control ◽  
Legal Requirements ◽  
The Rule Of Law ◽  
Margin Of Appreciation ◽  
The One

Abstract The State bears a certain responsibility for the consequences of digitalizing public administration and services. The principles of democracy and the rule of law demand that the state retains effective control over the digitalized performance of ist tasks. This “digital responsibility” of the State also has an impact on the application of public procurement rules governing the procurement of information technologies and services (IT). On the one hand, ensuring digital responsibility will often mean that the contracting authority needs a broad margin of appreciation when interpreting the rules of procurementlaw – for examplewith regard to the legal requirements for choosing special procurement procedures enabling a particulary flexible IT procurement. On the other hand, the contracting authority’s digital responsibility can also be turned against it: When involving, for instance, private parties in the preparation of substantial decisions concerning the procurement of IT, the authority must keep itself well informed and may not simply take over prepared decisions. This way, the digital responsibility of the State can be (and should be) used as a distinct legal argument under public procurement law.

scholarly journals Breaking Up the Unity of the World: Peter Fitzpatrick’s Conception of Responsive Law

2020 ◽  
pp. 174387212097533
Author(s):  
Johan van der Walt
Keyword(s):  
Rule Of Law ◽  
The Other ◽  
Short Article ◽  
The Rule Of Law ◽  
Other Hand ◽  
The World ◽  
The Law ◽  
The One ◽  
The Ideal

This short article on Peter Fitzpatrick’s conception of “responsive law” analyzes the ambiguous temporality that Fitzpatrick discerned in modern law. On the one hand, law makes the claim of being fully present and therefore already and completely contained in itself. This aspect of law reflects the law’s claim to “immanence,” that is, its claim of always being able to rely strictly on its own operational terms without having to take recourse to any consideration not already contained within itself. It is this aspect of law that renders the ideal of the “rule of law” feasible. On the other hand, the law’s claim to doing justice to every unique and therefore every new case also demands that it takes leave of that which is already settled within it. This aspect of law can be called its “imminence.” The imminence of the law concerns the reality that law always finds itself on the threshold of that which has not yet been said and must still be said. The article shows how Fitzpatrick relied on Freud’s concept of the totem to explain the “wondrous” unity of its immanence and imminence.

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