Many Doors to International Criminal Justice

2020 ◽  
Vol 23 (1) ◽  
pp. 1-26
Author(s):  
John Braithwaite
Keyword(s):  
World War Ii ◽  
Transitional Justice ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Truth Commissions ◽  
Survivor Guilt ◽  
Truth And Reconciliation ◽  
Complex Sequences

Responsibilities to protect and prevent elite crimes are best energized by enforcement that walks through many doors. Effective deterrence is rarely delivered by the International Criminal Court. Yet deterrence is possible when it patiently cumulates through many doors. Likewise truth, justice, and reconciliation can achieve little through one door and much through many. Opening more doors to the complexly cross-cutting character of survivor guilt with mass atrocities can better open possibilities for future prevention and reconciliation than simply doors to courtrooms that find a criminal on one side of complex sequences of atrocity. The Nuremberg and Tokyo War Crimes Trials opened quickly after World War II. They did not prove to hold keys to truth and reconciliation for Germany until the Eichmann trial finished in Jerusalem in 1962. Why? Still today, non-confession by the U.S. to Hiroshima/Nagasaki as war crimes has meant truncated Japanese reconciliation. Different kinds of doors are needed with crimes like the Dresden and Tokyo fire bombing, the rape of Nanjing and the “comfort women” issue. These have included citizens tribunals, truth commissions, and indigenous justice in cases like Bougainville that rejected the truth commission model. When we reflect upon door diversity, transitional justice turns out not to be very focused on justice or international criminal law, and not to be at all transitional, but rather a maze of doors to justice of diverse kinds that open or close across the longue durée (as developed in the work of Susanne Karstedt).1

Changing the Paradigm of International Criminal Law: Considering the Work of the United Nations War Crimes Commission of 1943–1948

2013 ◽  
Vol 15 (2) ◽  
pp. 203-223 ◽  
Author(s):  
Dan Plesch ◽  
Shanti Sattler
Keyword(s):  
World War Ii ◽  
United Nations ◽  
Criminal Law ◽  
Ad Hoc ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Trials ◽  
The United Nations

Abstract More than 2,000 international criminal trials were conducted at the end of World War II in addition to those held by the International Military Tribunals (IMTs) at Nuremburg and Tokyo. Fifteen national tribunals conducted these trials in conjunction with an international war crimes commission established by these same states in October 1943 under the name, The United Nations Commission for the Investigation of War Crimes, that soon became the United Nations War Crimes Commission (UNWCC). The extensive work of the UNWCC and these tribunals serves as a source of customary international criminal law that relates directly to the current work of the International Criminal Court and the ad hoc tribunals in operation since the 1990s.

scholarly journals Nazi Crimes in Poland. A Never-Ending Search for Justice

2019 ◽  
pp. 142-160
Author(s):  
Hanna Kuczyńska
Keyword(s):  
World War Ii ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
World War ◽  
National Courts ◽  
International Criminal Tribunals ◽  
Efficient Machine

This article deals with the model for prosecuting Nazi crimes committed in Poland in the light of the model presently used in international criminal law. It tries to answer the question: should the investigation of crimes of international law be handed over to transnational tribunals? Should they be hybrid tribunals involving a national factor, or completely supra-national tribunals like the International Criminal Court? Is it legitimate to transfer jurisdiction over these matters to national courts? The case of unpunished Nazi crimes in Poland may give a partial answer to this question. Certainly, various attempts made after World War II, including procedures brought before Polish courts, have contributed to understanding the function of international criminal law, and finding the answer to the question of the best model for prosecuting crimes of international law. At present, we also have the experience of international criminal tribunals, in particular the ICC, which is an efficient machine for prosecuting crimes of international law. Interesting conclusions can be drawn from its functioning that could improve the work of Institute of National Remembrance (IPN) prosecutors, and shed new light on the considerations regarding the prosecution of Nazi crimes in Poland after World War II.

Part III Epilogue and Reflections, 8 Conclusions and the Way Forward

2018 ◽  
Author(s):  
Kittichaisaree Kriangsak
Keyword(s):  
International Law ◽  
Transitional Justice ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Legal Assistance ◽  
Future Prospects ◽  
International Peace ◽  
Draft Convention

The chapter describes international efforts to close the gaps in existing treaties on the obligation to extradite or prosecute. These include: (i) the joint initiative for the adoption of a new international instrument on mutual legal assistance and extradition for the effective investigation and prosecution of the most serious crimes of international concern, in particular, the crimes of genocide, crimes against humanity, and war crimes, by domestic jurisdictions; and (ii) the International Law Commission's work on a draft convention on Crimes against Humanity. The chapter also explores the issue of capacity building for the national judiciary and a regional judicial mechanism to help alleviate the burden of the International Criminal Court; national peace/reconciliation, international peace/stability, and other considerations against the implementation of the obligation to extradite or prosecute; the operation of transitional justice as an alternative to prosecution; and the implications of the atrocities in Syria for the future prospects of this obligation in the context of international criminal justice.

Human Rights and Penal Policy

2018 ◽  
Author(s):  
Joachim J. Savelsberg ◽  
Suzy McElrath
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Human Rights Violations ◽  
Cultural Changes ◽  
Mass Violence ◽  
Convention Against Torture ◽  
Representational Power

Structural and cultural changes in the modernization process, combined with contingent historical events, gave rise to a human rights regime. It is codified in the Universal Declaration of Human Rights, promulgated after World War II and the Holocaust. Yet, only the gravest of human rights violations have been criminalized. First steps were taken beginning in the 19th century with The Hague and Geneva Conventions, constituting the Laws of Armed Conflict. They were followed by the Convention for the Prevention and Punishment of the Crime of Genocide (1948), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and eventually the Rome Statute (1998) on which the first permanent International Criminal Court is based. Some scholars even observe a justice cascade. Enforcement of the norms entailed in the above legal documents benefits from opportunities such as increases in international interdependencies, the buildup of international organizations, and the proliferation of nongovernmental organizations in the human rights realm. Challenges arise from partially competing principles such as conflict settlement and survival of suffering populations as cultivated by social fields such as humanitarianism and diplomacy and from a lack of law enforcement. While international institutions play a crucial role, much international law is implemented through domestic courts. International penal law pertaining to human rights has affected domestic policymaking in the human rights realm but also nation-level policies pertaining to the punishment of common crimes. Finally, debates continue to rage regarding the effects of the criminalization of grave human rights violations. Proponents have thus far focused on potential deterrent effects, but a new line of thought has begun to take cultural effects seriously. Its representatives identify a redefinition of those responsible for mass violence as criminal perpetrators and substantial representational power of international criminal law against those who bear responsibility for the gravest of human rights violations.

scholarly journals SEXUAL SLAVERY OF CHILDREN AS A WAR CRIME IN INTERNATIONAL CRIMINAL PERSPECTIVE

2020 ◽  
Vol 8 (10) ◽  
pp. 1171-1176
Author(s):  
N. Indriati ◽  
◽  
Wismaningsih a ◽  
Danial b ◽  
◽  
...  
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
War Crimes ◽  
Self Esteem ◽  
Criminal Court ◽  
Fundamental Rights ◽  
International Criminal Law ◽  
Individual Responsibility ◽  
Sexual Slavery ◽  
The Right

Child is a creature from God Almighty who needs to be protected by self-esteem and his dignity and is guaranteed for the right of his life to grow and develop according to his natural fate. Any form of treatment that interferes and impairs the fundamental rights in various forms of unauthorized utilization and exploitation must be discontinued without exception.This is a normative juridical research. The method of the research is statute approaches, that is analyzing sexual slavery in children as war crime, because many cases of completion can be done through international criminal court.The results showed that child is vulnerable to any crime of its form at his ag, and one of the war crimes is child sexual slavery, which are not a few children became victims. In international criminal law is known the term of individual responsibility, which means that the perpetrators of criminals either commander or soldier can be tried in the International Criminal Court established by Rome Statuteof 1998.

Moving from Nuremberg to The Hague

2021 ◽  
pp. 39-66
Author(s):  
Theodor Meron
Keyword(s):  
World War Ii ◽  
Criminal Law ◽  
International Criminal ◽  
Far East ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
International Criminal Tribunals ◽  
The Hague

This chapter examines how, appalled by the glaring impunity for gross violations of international humanitarian law committed in the course of the Yugoslavia fragmentation wars in the early 1990s, the author was among those who called for the establishment of a war crimes tribunal for the former Yugoslavia. A war crimes tribunal, sought by the U.N. Security Council, would be the first since the Nuremberg and Far East trials following World War II. The chapter then looks at the inadequacy of international humanitarian and criminal law recognized as applicable to non-international armed conflicts, focusing on the case of rape. It considers the establishment of the modern international criminal tribunals at The Hague and Arusha. The chapter also studies the ICTY, the ICTR and the International Criminal Court (ICC).

scholarly journals Philosophy of Law and International Criminal Law: Between Peace and Morality

2014 ◽  
Vol 14 (4-5) ◽  
pp. 738-767 ◽  
Author(s):  
Giorgio Bongiovanni ◽  
Giovanni Sartor ◽  
Chiara Valentini
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Legal Foundation ◽  
Hans Kelsen ◽  
Legal Concepts ◽  
Second World

The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.

Transitional justice and the International Criminal Court – in “the interests of justice”?

2007 ◽  
Vol 89 (867) ◽  
pp. 691-718 ◽  
Author(s):  
Dražan Đukić
Keyword(s):  
Transitional Justice ◽  
International Criminal Court ◽  
International Criminal ◽  
Radical Change ◽  
Criminal Court ◽  
Truth Commissions ◽  
Prosecutorial Discretion ◽  
Post Conflict ◽  
Treaty Interpretation

AbstractTransitional justice encompasses a number of mechanisms that seek to allow post-conflict societies to deal with past atrocities in circumstances of radical change. However, two of these mechanisms – truth commissions and criminal processes – might clash if the former are combined with amnesties. This article examines the possibility of employing the Rome Statute's Article 53 so as to allow these two mechanisms to operate in a complementary manner. It considers three arguments – an interpretation of Article 53 in accordance with the relevant rules on treaty interpretation, states' obligations to prosecute certain crimes and the Rome Statute's approach to prosecutorial discretion – and concludes that Article 53 is ill-suited to accommodate truth commissions in conjunction with amnesties.

From Timbuktu to The Hague and Beyond

2019 ◽  
Vol 17 (1) ◽  
pp. 77-99 ◽  
Author(s):  
Mark A Drumbl
Keyword(s):  
Cultural Change ◽  
Transitional Justice ◽  
International Criminal ◽  
Language Instruction ◽  
Criminal Court ◽  
Cultural Property ◽  
International Criminal Law ◽  
Public Debates ◽  
Penal Law ◽  
The Hague

Abstract This essay refracts the criminal conviction and reparations order of the International Criminal Court (ICC) in the Al Mahdi case into the much broader frame of increasingly heated public debates over the protection, removal, defacement, relocation, display and destruction of cultural heritage in all forms: monuments, artefacts, language instruction, art and literature. What might the work product of the ICC in the Al Mahdi proceedings — and international criminal law more generally — add, contribute or excise from these debates? This essay speculatively explores connections between the turn to penal law to protect cultural property and the transformative impulses that undergird transitional justice which, in turn, often insist upon cultural change, including to cultures of oppression and impunity. Along the way, this essay also unpacks thorny questions as to how to value cultural property; how to determine what, exactly, constitutes the kind of property whose destruction should be criminalized; and which ‘cultures’ should be protected by ‘whom’ and in ‘whose’ interests. ‘Culture is who we are.’1

scholarly journals The Crisis of International Criminal Law in Africa: A Regional Regime in Response?

2019 ◽  
Vol 66 (2) ◽  
pp. 287-311
Author(s):  
Eki Yemisi Omorogbe
Keyword(s):  
International Law ◽  
Criminal Law ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Armed Conflicts ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
International Crimes

Abstract This article considers the African Union’s (AU) proposal for a regional court for international crimes under the Malabo Protocol 2014 (Protocol). It places that within the AU’s rejection of the International Criminal Court’s (ICC) arrest warrants for African Heads of States that are not party to the Rome Statute and a more general protection of incumbents. It argues that the enthusiasm for establishing a regional criminal court, which lacks jurisdiction to prosecute incumbents, has not been sustained and African states remain committed to the ICC. It shows that nevertheless the Protocol’s provisions on genocide, crimes against humanity and war crimes, although imperfect, better address the specific character of armed conflicts in Africa than current international law, including the Rome Statute of the ICC. It concludes that the regional court for international crimes is unlikely to be established unless the ICC takes further action against incumbent leaders but that the Protocol’s provisions could be used in the development of a more Africa-centric international law.

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