scholarly journals The End of an Era: Static and Dynamic Interpretation in International Courts

2014 ◽  
Vol 14 (4-5) ◽  
pp. 920-943 ◽  
Author(s):  
Henrik Palmer Olsen ◽  
Stuart Toddington
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
Social Processes ◽  
International Criminal Law ◽  
International Courts ◽  
Legal Decisions ◽  
Static Regime ◽  
Judicial Reasoning

Ninety per cent of international courts’ (ICs) legal decisions have been issued within the last two decades. This increase in case law - along with other significant changes in the operation of ICs - signals a new form of judicialised international law. This change is best described as a shift from a 'static' regime of contractual relations between sovereign states to a more 'organic' regime of 'living law'. In criminal law, this development is exemplified by the reasoning of the ICTY, the ICTR and the ICC. In examining the institutional undercurrents that accompany these changes important questions arise: through what social processes is legitimacy imputed to ICs? How do ICs handle or avoid crises in legitimacy? In the context of recent critiques of judicial reasoning in international criminal law, the article suggests that the analysis of case law from ICs must become as dynamic and agile as contemporary international law itself.

scholarly journals Practice theory and change in international law: theorizing the development of legal meaning through the interpretive practices of international criminal courts

2019 ◽  
Vol 12 (1) ◽  
pp. 33-58 ◽  
Author(s):  
Nora Stappert
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
International Courts ◽  
Interpretive Practices ◽  
Legal Meaning

AbstractThe question of change has emerged as one of the main conceptual and empirical challenges for International Relations' practice turn. In the context of international law, such a challenge is brought into particularly stark relief due to the significant development of legal meaning through more informal, interpretive avenues, including through the judgments of international courts. This paper develops a framework for theorizing how interpretive legal practices generate normative content change in international law. Specifically, it uses the example of the development of international criminal law through the decisions of international criminal courts to analyze how legal interpretation can lead to normative change in practice. Drawing on interviews conducted with judges and legal officers at the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL), I analyze how a community of legal practice centered around these courts was able to construct and alter legal meaning in international criminal law, and how such a potential for change was curbed by understandings of the interpretive process and the role of international courts dominant among international lawyers.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

On Common Plans and Excess Crimes: Fragmenting the Notion of Co-Perpetration in International Criminal Law

2018 ◽  
Vol 31 (3) ◽  
pp. 693-718 ◽  
Author(s):  
LACHEZAR YANEV
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
Critical Discussion ◽  
Criminal Court ◽  
International Criminal Law ◽  
Joint Control ◽  
International Courts ◽  
Related Idea ◽  
The Common

AbstractThe theories of joint criminal enterprise and joint control over the crime have often been cited as the paramount example of fragmentation in the jurisprudence of the International Criminal Court and the UN Tribunals. While the analyses on these two forms of co-perpetration have generally focused on contrasting the different definitional criteria that they rely on to distinguish between principals and accessories to a group crime, this article shifts the focus to one legal element that, although common for both theories, has actually caused a deeper dissonance in the topical case law of the international courts and tribunals: the ‘common plan’ requirement. It is argued that the varying interpretations of this element have given rise to three materially distinct constructions of co-perpetration responsibility in international criminal law. Several normative and practical concerns stemming from the adoption of broad definitions for the common plan element, and the related idea of ascribing responsibility for ‘excess’ crimes of the executed plan, are analyzed to emphasize the need for having a critical discussion on this element of co-perpetration.

The ictr and Its Contribution to the Revivification of International Criminal Law

2020 ◽  
Vol 22 (1-4) ◽  
pp. 231-246
Author(s):  
Emily Crawford
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Armed Conflict ◽  
Ad Hoc ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Legal Responses ◽  
The Law

In this article, Emily Crawford explores one set of key institutional and legal responses to, and consequences of, the Rwanda genocide – the ictr and the revival of icl that the ictr and the icty heralded. Tracing the development of the concept and institutions of icl, Crawford observes how the case law of the [ad hoc] tribunals, and the ictr in particular, were pivotal in progressively developing the international law of genocide, and the law of non-international armed conflict’.

scholarly journals R. LEMKIN'S CONTRIBUTION TO THE DEVELOPMENT OF MODERN INTERNATIONAL LAW AND INTERNATIONAL CRIMINAL LAW

2021 ◽  
Vol 17 (2 (24)) ◽  
pp. 141-159
Author(s):  
Ewa Salkiewicz-Munnerlyn
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
International Courts ◽  
Residual Functions ◽  
The Icj ◽  
The Individual ◽  
The Impact

This article presents the significance and impact of Lemkin's concept of genocide on the development of international law. We will randomly present the jurisprudence of international courts such as the ICJ,  the  ICC,  the ICTY and the ICTR, which analyzed the concepts of genocide, including cultural heritage crimes. Residual functions of the ICTY, including oversight of sentences and consideration of any appeal proceedings initiated since 1 July 2013, are under the jurisdiction of a successor body, the International Residual Mechanism for Criminal Tribunals  (IRMCT). The article also invites attention to the impact on R2P and the human rights, as well as international state responsibility and the individual responsibility. 

scholarly journals The Eritrean Military/National Service Programme: Slavery and the Notion of Persecution in Refugee Status Determination

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 28
Author(s):  
Sara Palacios-Arapiles
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
European Convention ◽  
National Service ◽  
Refugee Status ◽  
Refugee Convention

Despite the overwhelming evidence of human rights violations within the Eritrean Military/National Service Programme (“MNSP”), adjudication of asylum applications made by Eritreans remains a challenge. Narrow interpretations of “slavery” have created obstacles for protection under the 1951 Convention Relating to the Status of Refugees (“1951 Refugee Convention”). This article discusses MST and Others, the latest Country Guidance case on Eritrea issued by the UK Upper Tribunal Immigration and Asylum Chamber (“UTIAC”), and also the lead case E-5022/2017 of the Swiss Federal Administrative Court (“FAC”), which to a large extent replicated the UTIAC’s approach. The article focuses on how “slavery,” “servitude” and “forced labour” under article 4 of the European Convention on Human Rights (“ECHR”) have been interpreted in the British and Swiss case-law. While both, the British and the Swiss Courts, had recourse to the European Court of Human Rights’ (“ECtHR”) interpretation of article 4(1) ECHR (the right not to be subjected to slavery or servitude), they refused the applicability of international criminal law notions to this provision, and thus to the concept of “persecution” in article 1A(2) of the 1951 Refugee Convention. In doing so, the UTIAC and the FAC set unreasonable requirements to satisfy article 4(1) ECHR. Due to the very limited case-law pertaining to slavery by the ECtHR, the ECHR does not offer an appropriate framework for examining asylum applications of victims of slavery. It is therefore suggested that slavery cases are considered against a wider legal framework, which involves the examination of concepts developed by international criminal law (“ICL”). ICL has indeed developed a significant body of jurisprudence on the interpretation of the international law concept of “slavery” and its application to contemporary situations. The article contrasts the British and Swiss Courts’ position to develop an interpretative approach that connects different areas of international law, including not only international refugee law and international human rights law (“IHRL”), but also ICL. If applied in line with the principle of systemic integration and according to the overall purposes of the 1951 Refugee Convention, this approach would yield consistent results. Ultimately, this article seeks to assist asylum decision-makers and practitioners in the interpretation and application of the refugee definition to asylum applications of persons from Eritrea.

scholarly journals Cosmopolitan Subjects: Critical Reflections on Dualism, International Criminal Law and Sovereignty

2014 ◽  
Vol 7 (3) ◽  
pp. 321-350 ◽  
Author(s):  
Ronald C. Jennings
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Great Majority ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
International Courts ◽  
Legal Subject ◽  
The Individual

Is contemporary international criminal law (icl) compatible with sovereignty and traditional international law (il) as it is comprehended by the doctrine of Dualism, as understood by the great majority of international jurists, scholars, government representatives and those working at the tribunals? What the literature has entirely missed is that three most important figures in the initial creation and institutionalization of ilc for the Yugoslavia Tribunal in 1994 – Antonio Cassese, Cherif Bassiouni and Theodor Meron – all shared a commitment to a monistic view based on expansive and radical interpretation of icl in which international criminal jurisdiction (iicj) – because it makes individuals its sole legal subject – as radically legally, politically and even ontologically incompatible with – and inherently to superior – sovereignty, as well as all those institutions based on traditional sovereign il (e.g., international humanitarian law, the un Charter system, and human rights). Normatively, they call for “the humanization” or individualization of international law marked by direct and unmediated relationships between iicj institutions and the individual. Practically, they acknowledge icl’s basis in modern statist domestic criminal law and Security Council power means that it is necessarily a unitary, top-down and subjecting power, incompatible with the claims of both dualists and pluralists. If the monists are correct, the African Union (au) must be very careful not to presume that what one likes about international courts (African, treaty- or sovereignty based tribunals) can be easily separated from what one does not like (unsc power, icc), because it was icl itself, not the tribunals, which is fundamentally anti-sovereign. As a result, this article concludes that icl itself is now too closely ground in iicj to think that it could be separated in an African court.

Procedural Developments at the International Criminal Tribunal for Rwanda (ICTR)

2011 ◽  
Vol 10 (2) ◽  
pp. 351-380 ◽  
Author(s):  
Tamfuh Y.N. Wilson
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Historical Context ◽  
International Criminal Tribunal ◽  
Case Law ◽  
International Criminal Law ◽  
The Novel ◽  
Rwandan Genocide

AbstractThe author seeks to expose the fact that the Rwandan genocide and its aftermath has many lessons for African leaders, especially that modern international criminal law is committed to punishing perpetrators of heinous crimes. The procedural processes at the Arusha International Criminal Tribunal for Rwanda have also operated a successful jurisprudence that has immensely contributed to the development of modern international law. This article looks at the historical context of the genocide, the jurisprudence and case law of the ICTR, the novel concepts that have contributed to the growth of international law, and the significance of rebuilding a post-genocide Rwanda.

Sign in / Sign up

Export Citation Format

Share Document