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

Access To Information ◽

Pragmatic Approach ◽

Criminal Proceedings ◽

Legal Procedure ◽

Fact Finding ◽

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.

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

Leiden Journal of International Law ◽

10.1017/s0922156520000539 ◽

2020 ◽

pp. 1-23

Author(s):

Liana Georgieva Minkova

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Northern Uganda ◽

Criminal Trials ◽

Operation Risk ◽

International Criminal Trials ◽

Empirical Contribution ◽

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.

Victims and international criminal justice: a vexed question?

International Review of the Red Cross ◽

10.1017/s1816383108000398 ◽

2008 ◽

Vol 90 (870) ◽

pp. 441-459 ◽

Cited By ~ 10

Author(s):

Mina Rauschenbach ◽

Damien Scalia

Keyword(s):

Criminal Justice ◽

Criminal Law ◽

International Criminal ◽

International Level ◽

International Regime ◽

Criminal Proceedings ◽

Criminal Justice Systems ◽

Justice Systems ◽

Vexed Question

AbstractDespite the growing attention being paid to “victims” in the framework of criminal proceedings, this attention does not seem to be meeting their needs under either national criminal justice systems or the international regime. In the latter, the difficulties encountered by the victims are aggravated by factors specifically arising from the prosecution and punishment of mass crimes at international level. This has prompted the authors to point out that the prime purpose of criminal law is to convict or acquit the accused, and to suggest that the task of attending to the victims should perhaps be left to other entities.

Victims' Participation in International Criminal Proceedings Beyond Mere Witnesses

Sexual Violence and Effective Redress for Victims in Post-Conflict Situations ◽

10.4018/978-1-5225-8194-9.ch005 ◽

2019 ◽

pp. 153-196

Keyword(s):

Criminal Justice ◽

Sexual Violence ◽

International Criminal ◽

Critical Evaluation ◽

Criminal Proceedings ◽

Criminal Trials ◽

Conflict Situations ◽

Depth Analysis ◽

Unique Nature

This chapter elaborates upon the framework set forth in the preceding chapter about the unique nature of sexual violence as a tactic of war and implications of this for the victims' needs to examine the limitations and challenges in addressing these needs within the context of the international criminal trials. The discussion offers a critical evaluation of the effectiveness of the growing victim-oriented approach in international criminal justice in responding to the needs of victims of conflict-related mass sexual violence. It presents an in-depth analysis of the procedural, legal, and practical aspects of the growing trend of victims' participation in international criminal justice proceedings, as currently being developed by the ICC, highlighting issues impeding its effectiveness in advancing effective redress for victims of sexual violence in conflict situations. This chapter argues that, while the growing victims' inclusion in the international criminal process remains a significant component of comprehensive victim-focused responses, it risks failing to consider the contextual dynamics surrounding the plight of victims of conflict-related sexual violence during and after conflicts, thereby falling short of providing effective responses to the needs of victims.

International Criminal Law as Expressivist Justice

Justice as Message ◽

10.1093/oso/9780198864189.003.0007 ◽

2020 ◽

pp. 391-416

Author(s):

Carsten Stahn

Keyword(s):

Criminal Justice ◽

Criminal Law ◽

International Criminal ◽

International Criminal Law ◽

Criminal Proceedings ◽

Different Dimensions

This chapter connects expressivism to justice discourse and different dimensions of justice. It claims that expressivism has a more complex role in international criminal justice than publicly admitted. It is a means to reaffirm the purposes and ambitions of the field and to encourage commitment to it, and to enact and perform law. It also provides a more realistic understanding of justice. It views justice not as something ‘objective’ or ‘definitive’ that can be delivered through criminal proceedings, but rather as an intersubjective process that is triggered through messages and communicative relationships: justice is a message.

The International Criminal Court’s Selectivity and Procedural Justice

Journal of International Criminal Justice ◽

10.1093/jicj/mqaa020 ◽

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 ◽

Practical Recommendations ◽

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?

Leiden Journal of International Law ◽

10.1017/s0922156512000027 ◽

2012 ◽

Vol 25 (2) ◽

pp. 251-282 ◽

Cited By ~ 12

Author(s):

CARSTEN STAHN

Keyword(s):

Criminal Justice ◽

International Criminal ◽

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.

Justice as Message

10.1093/oso/9780198864189.001.0001 ◽

2020 ◽

Author(s):

Carsten Stahn

Keyword(s):

Criminal Justice ◽

Speech Acts ◽

International Criminal ◽

Social Performance ◽

Second World War ◽

Institutional Discourse ◽

Criminal Proceedings ◽

Communicative Functions ◽

Second World

International criminal justice is a form of social performance. It relies on messages, speech acts, and performatives practices in order to convey social meaning. Major criminal proceedings, such as Nuremberg or Tokyo and other post-Second World War trials have been branded as ‘spectacles of didactic legality’. However, the expressive and the communicative functions of law have been sidelined in institutional discourse and legal practice. The concept of expressivism is referred to in justifications of punishment or sentencing rationales. It appears as reference in scholarly treatises, but it has remained crucially underdeveloped. This book is an attempt to remedy this gap. It shows that expression and communication are not only an inherent part of the punitive functions of international criminal justice but represented in a whole spectrum of practices: norm expression and diffusion, institutional actions, performative aspects of criminal procedures, and repair of harm. It argues that expressivism is not a classical justification of justice or punishment on its own but rather a means to understand its aspirations and limitations, to explain how justice is produced, and to ground punishment rationales.

The Crime Question

Doing Justice to History ◽

10.1093/oso/9780198846871.003.0004 ◽

2021 ◽

pp. 107-187

Author(s):

Barrie Sander

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Institutional Context ◽

Historical Narratives ◽

Relative Importance ◽

Criminal Courts ◽

Judicial Decisions ◽

Definition 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.

Legacy in International Criminal Justice

10.1093/oso/9780190272654.003.0015 ◽

2018 ◽

Author(s):

Carsten Stahn

Keyword(s):

Criminal Justice ◽

Collective Memory ◽

International Criminal ◽

Criminal Proceedings ◽

Societal Transformation ◽

Social Agents ◽

The Past ◽

Court Mandated

Legacy plays an increasing role in international criminal justice. But it remains under-theorized as a concept. Court strategies navigate between reproduction of the past and societal transformation. Many of the lasting effects of criminal proceedings are not tied to judgements, but specific incidents or performative aspects of trials, and their reception. This chapter examines legacy strategies and their critiques. It shows that the turn to legacy is partly an expression of the role of courts as social agents and geared towards the production of ‘global’ legacies. Legacy cannot be authoritatively construed by institutions, but shifts with perceptions over time. The chapter establishes a fivefold typology of legacy, including juridified legacy, institutional/systemic legacy, performative legacy, reproductive legacy, and receptive legacy. It argues that court-mandated legacy involves a certain degree of social construction and claims of ownership over the past that sit uncomfortably with the thicker fabric of remembrance and collective memory.

The admissibility of improperly obtained evidence: The universality of the problem and the diversity of approaches to solving it

Pravovedenie ◽

10.21638/spbu25.2019.307 ◽

2019 ◽

Vol 63 (3) ◽

pp. 460-480

Author(s):

Pavel P. Stepanov ◽

◽

Gleb E. Besedin ◽

◽

Keyword(s):

Human Rights ◽

Criminal Justice ◽

Due Process ◽

International Criminal ◽

Crime Control ◽

Criminal Court ◽

Criminal Proceedings ◽

European Court ◽

The Law

The article focuses on the issue of acknowledging inadmissible evidence obtained in violation of the law. According to the authors, this issue can be encountered, in one way or another, in any procedural system (both at the national and international levels). In this regard, the authors substantiate the relevance and ambivalence of the issue for the Russian criminal proceedings. Also, the authors use the scientific works of scholars belonging to the Soviet, early post-Soviet and modern periods of the development of Russian criminal proceedings, as well as materials of judicial practice from various years in order to demonstrate the evolution of approaches to the solution of the topic. In order to demonstrate universality of the issue, the authors analyze, in a comparative legal sense, the approaches of leading foreign procedural systems. It is concluded that there is a tendency that foreign legal systems are searching for the recognition criteria of evidence obtained in violation of the law to achieve a balance between the two areas of criminal procedural policy: ‘due process of law’ and ‘crime control’. Usually, the violation of human rights committed in obtaining evidence per se does not entail the finding of such evidence as unacceptable. The authors focus on the same issue, but in the scope of international criminal justice which combines the approaches of both the investigative (inquisitorial) and the accusatory (adversary) criminal procedure traditions. It is indicated that the bodies of international criminal justice (in particular, the International Criminal Court), when forming their position on the issue under consideration, are guided in many respects by the law enforcement practices of international bodies for the protection of human rights (primarily, the decisions of the European Court of Human Rights). The authors conclude that it is possible to use the criteria for the inadmissibility of evidence specified in the Rome Statute and the decisions of the European Court of Human Rights for Russian criminal proceedings due to the transitional nature of the criteria.