Two cheers for the impunity norm

2016 ◽  
Vol 42 (4-5) ◽  
pp. 487-499 ◽  
Author(s):  
Max Pensky
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Future Prospects ◽  
International Crimes ◽  
The Past ◽  
Current State

International criminal law (ICL) is dedicated to the battle against impunity. However, the concept of impunity lacks clarity. Providing that clarity also reveals challenges for the current state and future prospects of the project of ICL, which this article frames in cosmopolitan terms. The ‘impunity norm’ of ICL is generally presented in a deontic form. It holds that impunity for perpetrators of international crimes is a wrong so profound that states and international bodies have a pro tanto duty to prosecute and punish perpetrators, a duty that cannot be overridden by considerations of cost, including the costs of infringing on the traditionally understood legal sovereignty of states. This deontic reading of the impunity norm is difficult to justify, a fact linked to the waning fortunes of ICL over the past several years. If ICL is to reverse this trend, the impunity norm’s strongly deontic reading should be replaced by a version derived from deliberative principles.

The Oxford Handbook of International Criminal Law

2020 ◽  
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Controversial Issues ◽  
Legal Scholarship ◽  
International Crimes ◽  
The Core ◽  
The Past ◽  
International Criminal Tribunals

In the past twenty years, international criminal law has become one of the main areas of international legal scholarship and practice. Most textbooks in the field describe the evolution of international criminal tribunals, the elements of the core international crimes, the applicable modes of liability and defences, and the role of states in prosecuting international crimes. This book, however, takes a theoretically informed and refreshingly critical look at the most controversial issues in international criminal law, challenging prevailing practices, orthodoxies, and received wisdoms. The book should fundamentally alter how international criminal law is understood.

The 2009 AIDP's Resolution on Universal Jurisdiction – An Epitaph or a Revival Call?!

2010 ◽  
Vol 10 (3) ◽  
pp. 325-344 ◽  
Author(s):  
Maja Munivrana Vajda
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Association ◽  
State Legislators ◽  
Universal Jurisdiction ◽  
International Criminal Law ◽  
Controversial Subject ◽  
International Crimes ◽  
The Past ◽  
Penal Law

AbstractAt its 18th session held in September 2009, the Congress of the International Association of Penal Law adopted the Resolution on Universal Jurisdiction (RUJ). For the past decade, universal jurisdiction has been one of the most debated issues in international criminal law, and the RUJ has been expected to shed valuable light on this controversial subject matter. After setting out the rationale and scope of universal jurisdiction, the RUJ regulates its exercise and subjects it to a number of requirements and limitations. The drafters should be commended for their general support of the idea that states can exercise universal jurisdiction over a limited number of international crimes. However, the RUJ does suffer from a number of weaknesses. Whether it will ultimately serve as a point of reference for state legislators and practitioners therefore remains to be seen.

Could International Fact-Finding Missions Possibly Render a Case Inadmissible for the ICC? Remarks on the Ongoing Attempts to Include International Criminal Law in Fact-finding

2019 ◽  
Author(s):  
Barry de Vries
Keyword(s):  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Crimes ◽  
The Past ◽  
Fact Finding ◽  
Individual Criminal Responsibility

Abstract Twenty years after the adoption of the Rome Statute questions concerning complementarity remain. There is no clear indication as to how international involvement would influence the admissibility of a case. One of the responses to human rights violations and possible international crimes that has risen to prominence in the past decades is fact-finding mandated by UN organs. At the same time these mechanisms have started to incorporate a focus on issues of international criminal law and individual criminal responsibility. As these mechanisms are starting to attempt to resemble a criminal investigation in some regards the question starts to rise as to what effect an international fact-finding mechanism can have on the admissibility of a case before the International Criminal Court. This article explains how these mechanisms need to be viewed in the context of the complementarity-regime of the Rome Statute.

INTERNATIONAL CRIMINAL LAW AND AR (AZERBAIJAN REPUBLIC) LEGISLATION GENOCIDE CRIME AND ITS COMPARATIVE ANALYSIS WITH OTHER INTERNATIONAL CRIMES

2020 ◽  
Vol 53 (04) ◽  
pp. 48-52
Author(s):  
Erkin Humbat Musayev Humbat Musayev ◽  
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
Key Words ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
Transnational Crime ◽  
International Criminal Law ◽  
International Crimes

Key words: international law, international criminal law, genocide, war crimes, transnational crime

scholarly journals Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test

2015 ◽  
Vol 84 (3) ◽  
pp. 515-531
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
International Criminal Law ◽  
International Crimes ◽  
European Court ◽  
Starting Point

This article traces the development of the foreseeability test in the context of the nullum crimen principle. While the European Court of Human Rights has introduced the ‘accessibility and foreseeability’ criteria long ago in the Sunday Times case, the Court has only recently started to apply this standard with respect to international crimes. In the Kononov case, judges of the European Court of Human Rights exhibited strongly divergent opinions on the question whether the punishment of alleged war crimes that had been committed in 1944 violated the nullum crimen principle. According to this author, the dissension of the judges demonstrates the lack of objective foreseeability, which should have served as a starting point for the assessment of the subjective foreseeability and a – potentially exculpating – mistake of law of the perpetrator. The Court should therefore have concluded that the nullum crimen principle had been violated.

A Strategic Choice: The State Policy Requirement in Core International Crimes

2015 ◽  
Vol 28 (4) ◽  
pp. 953-975 ◽  
Author(s):  
ATHANASIOS CHOULIARAS
Keyword(s):  
Criminal Law ◽  
State Policy ◽  
International Criminal ◽  
Criminal Policy ◽  
The State ◽  
International Criminal Law ◽  
Controversial Issues ◽  
Policy Perspective ◽  
International Crimes ◽  
Definition Of

AbstractThe article focuses on one of the most intriguing and, at the same time, controversial issues of international criminal law: whether the state policy requirement should be considered as a constitutive element in core international crimes. Adopting a criminal policy perspective, my intention is to contribute to the ongoing discussion by offering a doctrinal and criminological corroboration of the position that answers in the affirmative. Nevertheless, I am not necessarily promoting a normative choice entailing the amendment of the definition of core international crimes, but I rather call for a policy choice of focusing on cases that presume a state policy component.

Recharacterisation of Crimes and the Principle of Fair Labelling in International Criminal Law

2018 ◽  
Vol 18 (5) ◽  
pp. 788-821
Author(s):  
Talita de Souza Dias
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Fair Trial ◽  
Comprehensive Analysis ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Legal Scholarship ◽  
International Crimes ◽  
The Creation ◽  
Central Claim

The principle of fair labelling has informed the creation of international crimes and other concepts of international criminal law since the modern inception of this discipline. In particular, it was the symbolic and condemnatory import of international labels such as genocide and crimes against humanity that partly motivated their introduction as offences separate from domestic ordinary crimes. Paradoxically, fair labelling has received marginal attention in legal scholarship and practice. Moreover, frequent instances of relabelling known as ‘recharacterisation of crimes’ may not be entirely consistent with that principle, inviting further analysis thereof. In this context, the purpose of this article is to provide a more systematic and comprehensive analysis of the principle of fair labelling in international criminal law, particularly in light of the phenomenon of recharacterisation of crimes. Its central claim is that fair labelling is as a fair trial right which precludes recourse to recharacterisation in certain circumstances.

‘We Demand Dignity for the Victims’ – Reflections on the Legal Qualification of the Indecent Disposal of Corpses

2015 ◽  
Vol 15 (5) ◽  
pp. 896-925 ◽  
Author(s):  
Caroline Fournet ◽  
Nicole Siller
Keyword(s):  
Case Studies ◽  
Criminal Law ◽  
International Criminal ◽  
Foreign Affairs ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Human Beings ◽  
International Crimes ◽  
Trafficking In Human Beings

‘We demand dignity for the victims’. Such was the pledge of the Dutch Minister of Foreign Affairs following the crash of Malaysia Airlines flight mh17 in rebel-held territory in eastern Ukraine and the looting of the corpses of the 298 victims. Although not an isolated instance, the indecent disposal of the corpses of the victims seems to have escaped legal scrutiny. Drawing from this and other case studies, this article addresses the legal qualification of acts of mistreatment perpetrated against the corpses of victims of international crimes. It analyses all relevant dispositions pertaining to international humanitarian law, international criminal law and the law of trafficking in human beings. While these provisions fail to legally characterize such acts, the judiciary however tends to recognize their criminality; a recognition which, in the authors’ views, could make its way into the text of international (criminal) law.

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