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.

Institutional Expression

2020 ◽  
pp. 165-249
Author(s):  
Carsten Stahn
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Speech Act ◽  
Speech Act Theory ◽  
Community Relations ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Mutual Learning ◽  
Expressive Meaning ◽  
Institutional Action

The chapter demonstrates that the very act of reacting to atrocities, and institutionalization itself, has expressive meaning. Institutions rely on symbolism, rituals, and mimetic practices in order to ensure their own survival. This also applies to international criminal courts and tribunals. Sometimes the ‘medium is the message’. Throughout history, the establishment of institutions has sent different signals, such as memory and remembrance, shame and apology, renewal of community relations, hope and belief or protest. International criminal justice relies on action. Speech act theory is helpful to understand the various meanings of institutional action. Acts, such as jurisdictional determinations (e.g. complementarity), preliminary examinations or investigations, arrests, or cooperation create new narrative subjects, entail commands or incentives for action, or convey attitudes. Outreach and legacy strategies involve strong didactic rationales. They are often more geared towards one-sided expression rather than two-way communication or mutual learning

The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law

2019 ◽  
Vol 19 (6) ◽  
pp. 1014-1045
Author(s):  
Barrie Sander
Keyword(s):  
Criminal Justice ◽  
Cultural Values ◽  
Complex Terrain ◽  
Critical Reflection ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Cultural Assumptions ◽  
Iron Cage ◽  
Point Of Departure

Scholarship within the field of international criminal justice has increasingly turned towards expressivist strands of thought, characterised by a concern for the didactic qualities of international criminal courts. Taking expressivism as its point of departure, this paper critically examines the expressive limits of international criminal justice. Specifically, the paper examines the extent to which international criminal courts have been expressively constrained both in their ability to alleviate the traumas of victims and in their receptivity to the local cultural values of conflict-affected communities. The paper argues that a critical reflection on the expressive limits of international criminal courts, paying particular attention to their retributive core and cultural assumptions, can help such institutions better navigate the complex terrain in which they operate, reducing aspirations concerning what they should be expected to achieve in practice and improving their legitimacy amongst local communities.

scholarly journals Expressing what? The stigmatization of the defendant and the ICC’s institutional interests in the Ongwen case

2020 ◽  
pp. 1-23
Author(s):  
Liana Georgieva Minkova
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Northern Uganda ◽  
International Criminal Justice ◽  
Criminal Trials ◽  
Operation Risk ◽  
International Criminal Trials ◽  
Empirical Contribution ◽  
Selection Of

Abstract The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.

scholarly journals Sixty-Five Years of International Criminal Justice: The Facts and Figures

2013 ◽  
Vol 13 (1) ◽  
pp. 7-41 ◽  
Author(s):  
Alette Smeulers ◽  
Alette Smeulers ◽  
Barbora Hola ◽  
Alette Smeulers ◽  
Barbora Hola ◽  
...  
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Empirical Reality

The international criminal justice system comprises nine international criminal courts and tribunals; six are still operational and three have closed down. On average, they operated for almost nine years apiece and concluded 172 cases in which over 250 judges and 23 chief prosecutors were involved. All in all 745 suspects were indicted, 356 were actually tried and, of these, some 281 defendants were convicted. Currently 34 suspects are on trial and 22 are still at large. The ‘average’ convicted perpetrator is male, aged 40 and a member of a military or paramilitary organisation from Europe, Asia or Africa who is acting on behalf of his government. These are just some of the facts and figures which we present in this article: an overview of the empirical reality of the international criminal justice system which has currently been functioning for just over 65 years.

The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice

2012 ◽  
Vol 25 (2) ◽  
pp. 491-501 ◽  
Author(s):  
ANTONIO CASSESE
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
The Other ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Complex Concept ◽  
International Criminal Tribunals

AbstractHaving identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.

scholarly journals Trials as Messages of Justice: What Should Be Expected of International Criminal Courts?

2016 ◽  
Vol 30 (4) ◽  
pp. 429-447 ◽  
Author(s):  
Tim Meijers ◽  
Marlies Glasius
Keyword(s):  
Criminal Justice ◽  
Final Section ◽  
International Criminal ◽  
Legal Theory ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Judicial Process ◽  
Limited Success ◽  
Contemporary Practice

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable (but not unproblematic) guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we emphasize the communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice.

Expertise in the Bench? The Dis-embeddedness of International Criminal Justice

2020 ◽  
pp. 241-250
Author(s):  
Julien Seroussi
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Sociological Theory ◽  
International Criminal Justice ◽  
Access To Information ◽  
Pragmatic Approach ◽  
Criminal Proceedings ◽  
Legal Procedure ◽  
Fact Finding ◽  
Selection Of

This chapter discusses how contextualizing facts can alter judicial outcomes, arguing for the necessity of developing a sociological theory about the facts of a case in order to ascribe responsibility in a court. Judges in international courts have very sparse access to information when they have to judge foreign situations from abroad. Thus, judges elaborate what can be called ‘folk sociological theories’ (FST), which are sociological narratives that can provide them with a grasp of the situation and a guide for the selection of facts that can demonstrate responsibility or guilt in the accomplishment of crimes. The chapter applies FSTs to the Germain Katanga and Mathieu Ngudjolo cases, suggesting that they raise important conceptual implications for understanding the epistemological limitations of international criminal proceedings. It also considers the production of FSTs through a pragmatic approach, showing when FSTs successfully produce the irrelevance of facts in fact-finding processes, and when they fail the reality tests of legal procedure.

scholarly journals The International Criminal Court’s Selectivity and Procedural Justice

2020 ◽  
Vol 18 (1) ◽  
pp. 107-139
Author(s):  
Birju Kotecha
Keyword(s):  
Criminal Justice ◽  
Procedural Justice ◽  
International Criminal ◽  
Selection Procedure ◽  
Procedural Fairness ◽  
Target Audience ◽  
International Criminal Justice ◽  
Practical Recommendations ◽  
Selection Of

Abstract Prosecution selectivity is one of the most intractable dilemmas in international criminal justice. It is of little surprise, then, that the International Criminal Court’s (ICC) selection of cases has long been subject to critical debate. This article contributes to the literature by analysing the ICC’s selection procedure from the perspective of affected communities. Vis-à-vis this target audience, the article critiques the procedure’s effectiveness against a measure of perceived legitimacy. Using a Rawlsian model of imperfect procedural justice, the analysis explains the specific shortcomings of the Office of the Prosecutor’s (OTP) selection procedure in being sufficiently consistent, impartial and representative. In turn, this lack of procedural fairness may reduce the likelihood that the OTP selections are perceived as legitimate within affected communities. More broadly, the article argues that the OTP is unable to reach the ‘fairest’ possible prosecutorial decisions as to situations or cases — culminating in the conclusion that its selection procedure makes a limited (if any) contribution to the Court’s perceived legitimacy. The article triggers reflection on the Court’s relationship with target audiences and concludes by making practical recommendations directed at improving the OTP’s selection procedure.

EDITORIAL: Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?

2012 ◽  
Vol 25 (2) ◽  
pp. 251-282 ◽  
Author(s):  
CARSTEN STAHN
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
International Courts ◽  
Prodigal Son ◽  
Local Responses ◽  
Fact Finding ◽  
Legal Example

AbstractThe traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable of The Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

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