The Prosecutorial Targets Question

2021 ◽  
pp. 61-106
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Political Context ◽  
Historical Narratives ◽  
The Political ◽  
Criminal Courts ◽  
Institutional Settings ◽  
Mass Atrocity ◽  
Selection Of

This chapter examines the practices that have influenced the selection of prosecutorial targets in different institutional settings and the implications for the scope and content of the historical narratives constructed by international criminal courts in their judgments. For this purpose, the chapter distinguishes between two forms of selectivity: first, situational selectivity, which concerns the mass atrocity situations that have been targeted for investigation within international criminal courts; and second, case selectivity, which concerns the individuals that have been targeted for prosecution within each situation. After revealing the prevailing influence of the political context on the prosecutorial focus of international criminal courts, the chapter turns to examine different strategies that have been deployed by defendants and their counsel—often in vain—in an effort to counter this hegemonic orientation.

Doing Justice to History

2021 ◽  
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Historical Narratives ◽  
Criminal Courts ◽  
Mass Violence ◽  
The Past ◽  
Institutional Settings ◽  
Historical Justice ◽  
Mass Atrocity ◽  
Historical Accounts ◽  
Historical Function

As communities—both local and international—have struggled to make sense of mass atrocity situations, expectations have increasingly been placed on international criminal courts to render authoritative historical accounts of the episodes of mass violence that fall within their purview. Taking these expectations as its point of departure, Doing Justice to History seeks to understand international criminal courts through the prism of their historical function—critically examining how such courts confront the past by constructing historical narratives concerning both the culpability of the accused on trial and the broader mass atrocity contexts in which they are alleged to have participated. The book argues that international criminal courts are host to struggles for historical justice, discursive contests between different actors vying for judicial acknowledgement of their preferred interpretations of the past. By examining these struggles within different institutional settings, the book surfaces the legitimating qualities of international criminal judgments—illuminating, in particular, what tends to be foregrounded and included within, as well as marginalised and excluded from, the narratives of international criminal courts in practice. What emerges from this account is a sense of the significance of thinking about the emancipatory limits and possibilities of international criminal courts in terms of the historical narratives that are constructed and contested both within and beyond the courtroom in different institutional and societal contexts.

Historical Narrative Pluralism Within and Beyond International Criminal Courts

2021 ◽  
pp. 276-303
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Historical Narrative ◽  
Historical Narratives ◽  
Social Meaning ◽  
Criminal Courts ◽  
Social Psychological ◽  
Intended Meaning ◽  
Mass Atrocity ◽  
Practical Factors ◽  
Criminal Courtroom

This chapter critically reflects on the expectations of historical finality and closure that have typically accompanied the rendering of international criminal judgments. The chapter argues that the historical narratives constructed within the judgments of international criminal courts are subject to a process of ongoing contestation and evolution both within and beyond the courtroom. The chapter reveals two types of narrative pluralism that may arise within the international criminal courtroom: first, inter-court narrative pluralism, which arises where judgments of different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which arises where narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. The chapter also identifies a range of social psychological and practical factors that generate gaps between the intended meaning of judicially constructed narratives and their public or social meaning amongst different audiences beyond the courtroom.

Introduction

2021 ◽  
pp. 1-25
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Far East ◽  
International Criminal Tribunal ◽  
Historical Narratives ◽  
Criminal Courts ◽  
The Past ◽  
Institutional Settings ◽  
International Military Tribunal ◽  
Military Tribunal ◽  
Historical Function

This chapter introduces the book’s consideration of how international criminal courts have confronted the past in different institutional contexts. The chapter provides a chapter-by-chapter overview of the book’s central themes and arguments. The book is concerned with the historical function of international criminal courts—their role in the construction of historical narratives concerning both the culpability of the accused on trial and the broader mass atrocity context in which they are alleged to have participated. This historical function raises a number of questions concerning the scope and content of the historical narratives constructed within international criminal judgments, the actors that exert influence over such processes, and the extent to which such histories are consistent and authoritative both within and beyond the courtroom. This book aims to address these questions by examining how the past has been confronted within three sets of international criminal courts: first, the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East at Tokyo; second, the United Nations ad hoc tribunals, namely the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone; and finally, the International Criminal Court. By critically examining the scope and content of the histories constructed within the judgments of these courts and by surfacing the influence of different actors and contexts over the precise orientation of judicial narratives, this book seeks to develop a deeper understanding of the emancipatory potential and limits of international criminal courts across different institutional settings.

scholarly journals HISTORY ON TRIAL: HISTORICAL NARRATIVE PLURALISM WITHIN AND BEYOND INTERNATIONAL CRIMINAL COURTS

2018 ◽  
Vol 67 (3) ◽  
pp. 547-576 ◽  
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Historical Narrative ◽  
Historical Narratives ◽  
Criminal Courts ◽  
Social Psychological ◽  
Intended Meaning ◽  
Critical Awareness ◽  
Mass Atrocity ◽  
Practical Factors ◽  
Criminal Courtroom

AbstractWith the resurgence of the field of international criminal justice in recent decades, expectations have increasingly been placed on international criminal courts to construct consistent and authoritative historical narratives about the mass atrocity situations that fall within their purview. Taking this expectation as its focus, this article seeks to illuminate the historical narrative pluralism that can arise both within and beyond the international criminal courtroom. Within the courtroom, two types of narrative pluralism are identified: first, inter-court narrative pluralism, which arises when different courts examine the same mass atrocity situation from different perspectives; and second, intra-court narrative pluralism, which emerges when narratives constructed within an international criminal judgment are revisited in later cases adjudicated by the same court. Beyond the courtroom, it is contended that even when international criminal courts manage to achieve inter-court and intra-court narrative consistency, in practice a range of social psychological and practical factors tend to generate a gap between the intended meaning of such narratives and their public or social meaning amongst different audiences. By illuminating the historical narrative pluralism that can arise both within and beyond the international criminal courtroom, this article calls for greater critical awareness of the constructed nature of the historical narratives rendered within international criminal judgments, as well as a sobering of the expectations that are typically placed on international criminal courts both with respect to the construction of narratives within the courtroom and their reception beyond it.

The Crime Question

2021 ◽  
pp. 107-187
Author(s):  
Barrie Sander
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Institutional Context ◽  
Historical Narratives ◽  
International Criminal Justice ◽  
Relative Importance ◽  
Criminal Courts ◽  
Judicial Decisions ◽  
Definition Of ◽  
Selection Of

This chapter examines the practices that have influenced the range and definition of crimes adjudicated within international criminal courts and the implications for the scope and content of the historical narratives constructed in their judgments. The chapter reveals how the range and definition of crimes have been shaped by different actors at particular junctures within international criminal justice processes, including the drafting of statutory frameworks, the selection of charges to include in indictments, and the interpretation of crime categories in judicial decisions and judgments. Crucially, the relative importance of these junctures and the relative influence of different actors have tended to vary depending on the institutional context in which struggles for control over the selection and meaning of categories of crime have been conducted. The chapter concludes by identifying forms of criminality that have consistently been marginalised within international criminal courts despite falling within their subject-matter jurisdiction.

The Political Background to the Establishment of the Slavic Nomocanon in the Thirteenth Century

2020 ◽  
Vol 56 ◽  
pp. 78-92
Author(s):  
Marija Koprivica
Keyword(s):  
Thirteenth Century ◽  
Canon Law ◽  
Civil Law ◽  
Ninth Century ◽  
Political Context ◽  
Slavic Language ◽  
The Political ◽  
Historical Documents ◽  
Political Background ◽  
Selection Of

The first collection of canon law translated from the Greek into the Slavic language in the ninth century supported the consolidation of Christianity among the Slav peoples. This article focuses on the nomocanon of St Sava of Serbia (Kormchaia), a collection which was original and specific in its content; its relationship to other contemporary legal historical documents will be considered. The article also explores the political background to the emergence of Orthodox Slav collections of ecclesiastical and civil law. The political context in which these collections originated exercised a determinative influence on their contents, the selection of texts and the interpretation of the canons contained within them. The emergence of the Slavic nomocanon is interpreted within a context in which Balkan Slav states sought to foster their independence and aspired to form autocephalous national churches.

Beyond the Purview of International Criminal Judgments

2021 ◽  
pp. 250-275
Author(s):  
Barrie Sander
Keyword(s):  
Financial Institutions ◽  
International Criminal ◽  
International Financial Institutions ◽  
Criminal Courts ◽  
Mass Violence ◽  
Mass Atrocity ◽  
Peacekeeping Forces ◽  
Slow Violence ◽  
International Peacekeeping ◽  
Forms Of Violence

This chapter examines three aspects of mass atrocity situations that have generally received little or no attention within the judgments of international criminal courts: first, the structural and slow violence that tends to exist prior to, during, and after the outbreak of situations of mass atrocity; second, the interventions of international actors, including the policies and practices of colonial powers, international financial institutions, and international peacekeeping forces; and finally, the roles performed by bystander communities and resisters during episodes of mass violence. By highlighting these blind spots, the chapter directs attention to the narrative limits of international criminal courts and highlights the risk that their judgments may undermine more nuanced understandings of human agency in mass atrocity contexts, whilst legitimating some of the structural and slow forms of violence and international interventions that they marginalise or exclude.

scholarly journals s.VII Anxieties, Ch.29 Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy

2020 ◽  
Author(s):  
Glasius Marlies ◽  
Meijers Tim
Keyword(s):  
International Criminal ◽  
Political Legitimacy ◽  
The Political ◽  
Criminal Courts ◽  
Criminal Trials ◽  
Reverse Inequality ◽  
Political Dimension ◽  
High Profile ◽  
Set Up ◽  
International Criminal Trials

This chapter discusses a communicative advantage for ‘defiant defendants’, otherwise known as the ‘inequality of arms reversed’. A common critique of international criminal justice is that international criminal trials, when faced with high-profile and charismatic defendants, are basically doomed: either they silence the defendant’s political rhetoric and become show trials, or they let the defendant speak of the bias and inconsistencies in their institutional set-up, thus equally imperilling their legitimacy. This chapter argues that international criminal courts are not doomed by the reverse inequality: the communicative outcomes of international criminal trials remain contingent. For instance, prosecutors can make arguments that are politically and culturally attuned to local audiences. Moreover, the procedure of the trial can influence the defendant’s attitude. This chapter contends that it is possible for prosecutors and judges to acknowledge the political dimension of international criminal processes without turning them into show trials. Indeed, it is desirable for judges and prosecutors to confront the politics of the defendant head on.

Kimberly Prost

2018 ◽  
Vol 112 ◽  
pp. 243-244
Author(s):  
Kimberly Prost
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Political Context ◽  
The Political ◽  
National Context ◽  
International Courts ◽  
International Court ◽  
Judicial Role

This is one of the issues that is perhaps the most challenging for judges who come to international courts from a national context. It is particularly important that a judge understands the political context in which they are judging. There is a tendency to say—and I have heard many colleagues at the ICTY and International Criminal Court (ICC) saying—“I am going to keep completely out of the politics because that's none of my business, I'm here to just to do my judicial role.” With great respect I think that is a fundamental mistake, because the reality is if a judge is going to defend her independence on an international court, she really has to understand the political context in which she is defending it.

The Struggle for Historical Justice

2021 ◽  
pp. 26-60
Author(s):  
Barrie Sander
Keyword(s):  
International Criminal ◽  
Historical Narratives ◽  
Critical Examination ◽  
Criminal Courts ◽  
The Past ◽  
Historical Justice ◽  
Analytical Perspective ◽  
Institutional Contexts ◽  
Historical Function

This chapter situates the book within existing scholarship concerning the historical function of international criminal courts and introduces the book’s analytical perspective, namely the characterisation of international criminal courts as confrontational terrains that are host to struggles for historical justice—intense contests in which a range of different actors vie for judicial acknowledgement of their preferred interpretations of the past. In order to facilitate a critical examination of these struggles, the chapter elaborates a framework for exploring how the situated choices of different actors have influenced the scope and content of judicially constructed historical narratives in different institutional contexts. The framework identifies the actors involved in struggles for historical justice, the questions around which such struggles tend to be structured, and the practices through which such struggles are conducted.

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