Shocking the Conscience of Humanity

2020 ◽  
Author(s):  
Margaret M. deGuzman
Keyword(s):  
Criminal Law ◽  
Global Justice ◽  
International Criminal ◽  
International Criminal Law ◽  
The Creation ◽  
Definition Of ◽  
Global Values

The most commonly cited justification for international criminal law is that it addresses crimes of such gravity that they “shock the conscience of humanity.” From decisions about how to define crimes and when to exercise jurisdiction, to limitations on defenses and sentencing determinations, gravity rhetoric permeates the discourse of international criminal law. Yet the concept of gravity remains highly undertheorized. This book uncovers the consequences for the regime’s legitimacy of its heavy reliance on this poorly understood idea. It argues that gravity’s ambiguity may at times enable a thin consensus to emerge around decisions, such as the creation of an institution or the definition of a crime, but that, increasingly, it undermines efforts to build a strong and resilient global justice community. The book suggests ways to reconceptualize gravity in line with global values and goals to better support the long-term legitimacy of international criminal law.

Legitimacy, Gravity, and Global Community

2020 ◽  
pp. 9-33
Author(s):  
Margaret M. deGuzman
Keyword(s):  
Criminal Law ◽  
Global Justice ◽  
International Criminal ◽  
Theoretical Framework ◽  
International Criminal Law ◽  
Global Community ◽  
Central Argument ◽  
Global Values

This chapter provides a theoretical framework for the book’s central argument that the concept of gravity should be reconceived as a function of values and goals to promote the legitimacy of international criminal law. It does so by: (1) explaining how the book uses the concept of legitimacy; (2) describing the pervasive goal-independent approach to gravity as a justification for regime decisions, and explaining the proposed reconceptualization; (3) elaborating a theory of international criminal law as both a tool, and constructor, of the global justice community; and (4) suggesting some of the global values and goals that ought to guide regime decisions.

Contextualising Radhabinod Pal's Dissenting Opinion in Contemporary International Criminal Law

2021 ◽  
pp. 1-9
Author(s):  
Sumedha CHOUDHURY
Keyword(s):  
Criminal Law ◽  
Global Justice ◽  
International Criminal ◽  
International Criminal Law ◽  
Global Democracy

Abstract Radhabinod Pal, a judge at the Tokyo Tribunal, wrote a dissenting opinion absolving all the accused Japanese of the alleged crimes. In so doing, he advanced several conceptual and theoretical arguments to support his opinion. This paper focuses on the opinion of Pal concerning non-retroactivity of law, global democracy, imperialism, and victor's justice. The paper analyses his opinion in the light of contemporary developments and argues that his criticisms of the international criminal law regime and global justice are still relevant.

A Strategic Choice: The State Policy Requirement in Core International Crimes

2015 ◽  
Vol 28 (4) ◽  
pp. 953-975 ◽  
Author(s):  
ATHANASIOS CHOULIARAS
Keyword(s):  
Criminal Law ◽  
State Policy ◽  
International Criminal ◽  
Criminal Policy ◽  
The State ◽  
International Criminal Law ◽  
Controversial Issues ◽  
Policy Perspective ◽  
International Crimes ◽  
Definition Of

AbstractThe article focuses on one of the most intriguing and, at the same time, controversial issues of international criminal law: whether the state policy requirement should be considered as a constitutive element in core international crimes. Adopting a criminal policy perspective, my intention is to contribute to the ongoing discussion by offering a doctrinal and criminological corroboration of the position that answers in the affirmative. Nevertheless, I am not necessarily promoting a normative choice entailing the amendment of the definition of core international crimes, but I rather call for a policy choice of focusing on cases that presume a state policy component.

Recharacterisation of Crimes and the Principle of Fair Labelling in International Criminal Law

2018 ◽  
Vol 18 (5) ◽  
pp. 788-821
Author(s):  
Talita de Souza Dias
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
Comprehensive Analysis ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Legal Scholarship ◽  
International Crimes ◽  
The Creation ◽  
Central Claim

The principle of fair labelling has informed the creation of international crimes and other concepts of international criminal law since the modern inception of this discipline. In particular, it was the symbolic and condemnatory import of international labels such as genocide and crimes against humanity that partly motivated their introduction as offences separate from domestic ordinary crimes. Paradoxically, fair labelling has received marginal attention in legal scholarship and practice. Moreover, frequent instances of relabelling known as ‘recharacterisation of crimes’ may not be entirely consistent with that principle, inviting further analysis thereof. In this context, the purpose of this article is to provide a more systematic and comprehensive analysis of the principle of fair labelling in international criminal law, particularly in light of the phenomenon of recharacterisation of crimes. Its central claim is that fair labelling is as a fair trial right which precludes recourse to recharacterisation in certain circumstances.

Just How Ill-treated Were You? An Investigation of Cross-fertilisation in the Interpretative Approaches to Torture at the European Court of Human Rights and in International Criminal Law

2015 ◽  
Vol 84 (3) ◽  
pp. 482-514 ◽  
Author(s):  
Michelle Farrell
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Legal Reasoning ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Definition Of

The prohibition on torture in international human rights law seems a fairly straightforward candidate for productive use in international criminal law. The Convention against Torture contains an elaborate definition of torture and human rights institutions have developed substantial jurisprudence on the prohibition and definition of torture. Indeed, the ad hoc Tribunals and the drafters of the Rome Statute have employed the human rights law approach to torture to varying degrees. But the conception of torture reached by human rights bodies is problematic and unsuitable for usage where individual criminal responsibility is sought. It is unsuitable because the human rights law understanding of torture is subjective and victim-derived. Human rights bodies do not scrutinize intent, purpose and perpetration, central aspects of international criminal legal reasoning. The communication on torture between these bodies of law to date shows that cross-fertilisation, without detailed reasoning, is inappropriate - because rights are different to crimes.

On Some Problematical Aspects of the Crime of Aggression

2007 ◽  
Vol 20 (4) ◽  
pp. 841-849 ◽  
Author(s):  
ANTONIO CASSESE
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Liability ◽  
International Criminal Law ◽  
State Responsibility ◽  
International Treaty ◽  
Legal Regimes ◽  
Degree Of Certainty ◽  
Definition Of

The essay argues that the absence of an international treaty definition of aggression in international law should not preclude the prosecution of its perpetrators. Two legal regimes of responsibility, namely the prohibition against aggression as an international wrongful act and the crime of aggression have been entangled. Once one separates the criminal liability of individuals from state responsibility, a definition of the crime of aggression can be seen. According to the author, the contours of such a new definition contain the requisite degree of certainty for judicial approaches instead of merely political approaches. Consideration is also given as to whether conspiracy to wage a war of aggression may also be regarded as a separate crime within international criminal law.

scholarly journals An overview on Individual Criminal Liability for Crime of Aggression

2021 ◽  
Vol 5 (1) ◽  
pp. 433-444
Author(s):  
Asif Khan ◽  
Shaukat Hussain Bhatti ◽  
Abid Shah
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
International Criminal Law ◽  
Historical Background ◽  
Proper Definition ◽  
Definition Of ◽  
Individual Criminal Responsibility

Over the last few years, international criminal law has included an internationally recognized definition of the crime of aggression. One may sight the respective portion from part two (Jurisdiction, Admissibility and Applicable Laws) Article 8 of the respective document. The purpose of this research represents the historical background of individual criminal responsibility under international law and the concept of individual criminal accountability for the crimes falling under the ambit of international criminal law committed by persons. Whereas the idea of how an individual could be brought to justice, for one of the core crimes of ICC's statutes, i.e., crime of aggression, was recently adopted and envisaged into Rome statutes, after the Kampala conference 2010. The concept of individual criminal responsibility for the crime of aggression faced many difficulties in at-least adopting its proper definition, which was leftover for future when Rome statue was formulated. To keep pace, this concept needs further evolution. Such an evolution demands such a condition wherein while granting the characteristics of adaptability with the contextual conditions and principles of criminal law. This article explores the anatomy of the crime of aggression and highlights issues that remain to be resolved

The doctrine of Res Judicata in International Criminal Law

2003 ◽  
Vol 3 (3) ◽  
pp. 195-216 ◽  
Author(s):  
Rosa Theofanis
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
International Criminal Law ◽  
Res Judicata ◽  
The Law ◽  
Definition Of

AbstractRes judicata is well-settled as a general principle of international law. But the rules of res judicata in international criminal procedure are undeveloped. Recent cases from the ad hoc criminal tribunals for the former Yugoslavia and Rwanda have added to the understanding of res judicata in international law - demonstrating the risk that new rules of res judicata will implicitly incorporate either a common-law or civil-law definition of what the "law" is. Analysis of issues considered in recent Tribunal jurisprudence - particularly the questions of review and reconsideration - locates potential hazards in the development of the law and provides guidance for the application of the ICC statute.

International Criminal Law and Transitional Justice in Brazil

2010 ◽  
Vol 10 (4) ◽  
pp. 509-534
Author(s):  
Maria Ereza Rocha de Assis Moura ◽  
Fabíola Girão Monteconrado ◽  
Marcos Zilli
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
International Criminal ◽  
International Criminal Law ◽  
Military Dictatorship ◽  
The Public ◽  
The Social ◽  
Political Interpretation ◽  
Definition Of ◽  
The Military

AbstractIn the Brazilian legal system there is no tradition in recognising the applicability of international criminal law over domestic law. In two cases judged by the STF, the Haximu Massacre and Siegfried Ellwanger, only tangential questions were addressed. In the first, the arguments concentrated on examining the legal definition of the crime of genocide and its distinction from homicide. In the second, the questions revolved around the social, historical, and political interpretation of the word "race" in the judgment of a defendant who had published anti-Semitic and "revisionist" books and articles about the Holocaust. Brazil has also demonstrated itself to be somewhat refractory in incorporating the principles of international criminal law when examining the Justice of Transition. In a recent decision, the STF affirmed the constitutionality of Law No. 6,683/79, which granted amnesty to the perpetrators of political crimes and the public agents responsible for torture and the forced disappearance of people during the military dictatorship. In summary, the Justices recognised as valid the political agreement that led to the promulgation of the Amnesty Law in such a way that any alteration of its terms could only be made by the National Congress.

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