Rules, Games, and the Axiological Foundations of (International) Criminal Law

2016 ◽  
Vol 16 (2) ◽  
pp. 346-360
Author(s):  
Leo Zaibert
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Legal System ◽  
International Criminal ◽  
International Criminal Law ◽  
The Law ◽  
Domestic Law

International law has often been seen with scepticism, at least when contrasted against domestic law. International criminal law may suffer the same fate unless we reject a certain tendency to understand the role and functioning of any legal system in reductive and mechanistic terms. This tendency – a remnant from positivism – sees the law as modelled on games, and on their constitutive rules. I examine here a defense of this positivistic, narrow approach by prominent (domestic) criminal law theorists, and suggest reasons why international criminal law, in particular, should avoid it.

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.

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’.

The Perestroika of International Criminal Law: Soviet Reforms and The Promise of Legal Primacy in International Governance

2020 ◽  
Vol 23 (2) ◽  
pp. 236-270
Author(s):  
Mikkel Jarle Christensen
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Governance ◽  
Law And Politics ◽  
Legal Thinking ◽  
Domestic Law

This article examines how the perestroika gave rise to a new legal thinking that helped spark a broader transformation of international law and governance. Building on the sociology of Pierre Bourdieu, the article analyzes the emergence and short-lived influence of the professionals behind the new legal thinking of the perestroika. This elite operated at the crossroads between international and domestic law and politics. At this juncture, and in an attempt to safeguard and solidify their own position, they promoted the primacy of international law over politics by calling for, among other things, the establishment of an international criminal court. Building on the thinking of this elite that coexisted with concurrent streams of investments into international law from both East and West, a geopolitical window for new criminal law initiatives beyond the state was opened. It was in this brief window of opportunity that the field of international criminal justice was developed as a reflection of a wider universalist promise of establishing legal primacy in international governance.

scholarly journals Comparative International Law at the ICTY: The General Principles Experiment

2015 ◽  
Vol 109 (3) ◽  
pp. 486-497 ◽  
Author(s):  
Neha Jain
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Comparative Law ◽  
International Criminal Law ◽  
International Lawyer ◽  
General Principles Of Law ◽  
Similarities And Differences ◽  
Domestic Law

For a significant period of time, the comparativist and the international lawyer were considered to inhabit different worlds: the former scrutinized similarities and differences between domestic legal systems while the latter focused on the universal realm of international law that overlays these systems. This comfortably segregated image has been conclusively shattered by numerous studies demonstrating the multiple areas of interaction between international and comparative law. of these, one of the ripest areas for further reflection is the “general principles of law” as a source of international law. Puzzlingly, given the traditional domestic law origins of the general principles of law, comparative law and methodology have rarely featured in the scholarship and jurisprudence on the general principles. Thus, the attempt of the International Criminal Tribunal for the Former Yugoslavia (Icty) to use the general principles as a freestanding source of international criminal law provides a particularly intriguing opportunity to study the interaction between international and comparative law.

scholarly journals Superior Responsibility in Estonian Criminal Law and its Compliance with International Law

2019 ◽  
Vol 28 ◽  
pp. 64-78
Author(s):  
Andres Parmas
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Legal System ◽  
Rome Statute ◽  
International Criminal ◽  
Customary International Law ◽  
Regulatory Scheme ◽  
Law System ◽  
Superior Responsibility ◽  
Domestic Law

 If a domestic criminal-law system is to be equipped to operate in conformity with the underlying idea of complementarity that is among the International Criminal Court’s underpinnings, it is vital that, amongst other aspects of general principles of responsibility, the superior responsibility doctrine be transposed into domestic law properly. Accordingly, the paper deconstructs Art. 88 (1) of the Estonian Penal Code, which stipulates the superior responsibility concept in the Estonian legal system, for the purpose of assessing whether it exhibits compliance with customary international law on superior responsibility or Art. 28 of the Rome Statute. The analysis presented reveals considerable differences between the Estonian regulatory scheme and relevant international norms: it appears that there are several respects in which Estonian regulation does not meet the international standard and, hence, large lacunae are to be found in Estonian law on superior responsibility. For this reason, the article concludes with a recommendation that Estonian regulation of superior responsibility be complemented in such a way that it is rendered consistent with international law – specifically, with the requirements of Art. 28 of the Rome Statute – while simultaneously taking into consideration the demands stemming from Estonian criminal-law dogmatics, especially the guilt principle.

scholarly journals Problems of Balancing Private and Public Interests of States in the Criminalisation of International Crimes

2020 ◽  
Author(s):  
Anastasiya Tabatchikova ◽  
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Community ◽  
The State ◽  
International Criminal Law ◽  
Public Interests ◽  
Contemporary World ◽  
International Crimes ◽  
Domestic Law

The contemporary world often sees a contradiction between the actions of states to advocate their own interests and the interests of the international community in combating the most dangerous crimes. In the field of international criminal law, the problem of imbalance between interests of particular states (‘private’ interests), and the interests of the international community in general ‘public’ interests) is especially evident. This imbalance indirectly manifests in the occurrence of contentious situations during the criminalisation of international crimes in national law. This article covers the problem of the imbalance of interests, from its general philosophical underpinnings to specific manifestations in criminal law. This objective mediates the construction of the article according to the principle ‘from the general to the particular’: from the general problem of the relation of the interests of the state and the global community through the prism of international criminal law to the specific problems of criminalisation in domestic law. The article was prepared with the use of historical, comparative-legal, and formal-juridical methods. The ain provisions of the article are illustrated with examples from international and national law, supported by quotations from philosophers and contemporary scholars of the philosophy of international law. The author begins by exploring the development of ideas of sovereignty as a private interest of the state. Upon establishing that the evolution of sovereignty ideas has not led to its uniform understanding and consistency with the interests of international law, the author delves into the problems of international criminal law. The author adresses the problems occurring during the criminalisation of international crimes in the framework of domestic law. The author makes a conclusion regarding the possible ways of national law refinement for strengthening the interaction of states in the field of international criminal law.

Sign in / Sign up

Export Citation Format

Share Document