The challenges of international criminal law in addressing mass atrocity

2013 ◽  
pp. 177-198
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Mass Atrocity

Responsibility to Protect in International Criminal Law

Postgenocide ◽  
2021 ◽  
pp. 112-134
Author(s):  
Jobair Alam
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Minority Group ◽  
Responsibility To Protect ◽  
International Criminal Law ◽  
National Politics ◽  
Mass Atrocity ◽  
Jus Cogens ◽  
Atrocity Crimes ◽  
Normative Foundations

This chapter considers the worst contemporary state-led prosecution of a minority group, which amounts to genocide, namely the Rohingya. It examines the atrocity crimes committed against them under international criminal law (ICL) and the application of Responsibility to Protect (R2P) thereupon. It suggests that such atrocities are constitutive of violations of jus cogens which warrants obligatio erga omnes. Accordingly, the perpetrators can be brought to justice under inter/national and universal jurisdictions, which, nonetheless, has not yet occurred. Given the failure of ICL mechanisms, the normative foundations of the R2P can provide valuable tools for intercepting mass atrocity crimes. The Rohingya—who face direct and structural violence at the hands of the Myanmar state—need protection from these crimes. The chapter explains how insular national politics can undo the gains made by the international community in upholding the distinctiveness of humanitarian claims through the application of the R2P.

s.V Modalities, Ch.21 From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability

2020 ◽  
Author(s):  
Mohamed Saira
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Liability ◽  
International Criminal Law ◽  
Criminal Organizations ◽  
Military Tribunal ◽  
Mass Atrocity ◽  
Atrocity Crimes ◽  
Missed Opportunity

This chapter considers the lost legacy of the concept of criminal organizations in international criminal law. When the notion of declaring the criminality of organizations, in addition to determining the guilt of individuals, was first proposed in anticipation of the trial before the International Military Tribunal at Nuremberg, organizational criminality was viewed as an opportunity both to recognize the role of organizations in nurturing mass criminality and to facilitate the prosecution of masses of individuals. But by the time the Tribunal was in operation, the first of these goals had faded away, and organizational criminality represented nothing more than a tool to accomplish individual criminality. This chapter argues that treating criminal organizations as a means to secure individual criminal liability represents a loss, a missed opportunity, in international criminal law. The condemnation of organizations that can attend organizational liability could have created within international criminal law an opportunity to expose the role of organizations in the perpetration of mass atrocity, to call attention to and analyze the institutionalized nature of mass atrocity crimes, which makes these crimes not only unthinkably destructive, but also inherently and importantly distinct from criminal wrongdoing in which a person’s conduct diverges from the standards of most of society. The missed opportunity of abandoning criminal organizations liability is particularly acute, this chapter contends, in light of the research in the decades since Nuremberg establishing how organizations affect individual behaviour. With greater understanding about the mechanisms for individuals’ desire to conform with peers, to obey authorities, and to rationalize their own actions, we can now see that organizations contribute to individuals’ decisions to commit crimes by providing forums and creating environments in which individuals come to believe that criminal behaviour is necessary or normal or even good, or in which individuals fail to recognize their own part in a criminal system. The organizations thus provide not only the machinery for atrocity, but also the motivation. By abandoning the substantive core of criminal organizations, international criminal law fails to identify the foundational role of organizations in creating mass atrocity crimes.

Purpose-based or knowledge-based intention for collective wrongdoing in international criminal law?

2014 ◽  
Vol 10 (2) ◽  
pp. 163-176
Author(s):  
Kirsten J. Fisher
Keyword(s):  
At Risk ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Mens Rea ◽  
International Crimes ◽  
Knowledge Based ◽  
Mass Atrocity

AbstractDue to the distinct nature of international crimes such as genocide and crimes against humanity originating out of and contributing to the pervasive collective character of mass atrocity, the appropriate mens rea for individual commission of these crimes is difficult to pin down. The mens rea for these international crimes has been deliberated, disputed and inconsistently applied, leaving what it means for individuals to intend to commit crimes of mass atrocity mired in confusion. This paper explores the meaning of intentional commission of collective crime, and demonstrates that from both philosophical and legal perspectives, acting intentionally in the context of mass atrocity can be interpreted in different ways, resulting in a condition of international criminal law which is at risk of unpredictability and expressive uncertainty. The paper endorses purpose-based, rather than knowledge-based, intent as the appropriate standard in the context of international crimes by arguing that mere knowledge of outcomes is insufficient.

Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law

2020 ◽  
Vol 33 (1) ◽  
pp. 145-181
Author(s):  
Itamar Mann
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
Criminal Activity ◽  
International Criminal Law ◽  
Criminal Cases ◽  
Legal Rules ◽  
Normal Character ◽  
Mass Atrocity ◽  
The Law ◽  
The One

Atrocities are often unprecedented and identifying them therefore may require moral and political judgement, not only the application of legal rules. Consequently, potential defendants charged for perpetrating them may be genuinely unable to recognize the law that prohibits their criminal activity. Starting from its classical treatment in Hannah Arendt’s Eichmann in Jerusalem, this problem has perplexed scholars who have noted the seemingly normal character of defendants in mass atrocity cases. In disagreement with other scholars in the area, I argue for a recognition of a “mistake of law”? defense in international criminal law. The Article demonstrates the stakes of the claim through three hypothetical international criminal cases with different political underpinnings, all pertaining to burning contemporary concerns: cases against individuals responsible for the enormous risks of climate change; against abusers of migrants in the context of border enforcement; and against individuals responsible for the termination of pregnancies in abortion clinics. I argue for a dual approach: on the one hand, prosecutors and judges must constantly leave open the possibility of a radical departure from extant doctrine and precedent in charging individuals. On the other, they must recognize that defendants may reasonably not be able to recognize the law qua law, especially when such departures occur. The internal tension between these two imperatives sheds light on the predicament of international criminal adjudication. A recognition of the proposed mistake of law defense is but a modest doctrinal solution for a much more fundamental perplexity of the discipline. Yet it is especially crucial today, with an ever-clearer normative divergence among actors in the “international community.”?

Collective Reparations and the Limitations of International Criminal Justice to Respond to Mass Atrocity

2018 ◽  
Vol 18 (1) ◽  
pp. 67-96 ◽  
Author(s):  
Nadia Tapia Navarro
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
Trust Fund ◽  
Legal Fiction ◽  
Mass Atrocity ◽  
Collective Dimension

Crimes under international criminal law (icl) are complex and are necessarily committed by complex nets of perpetrators with different degrees of responsibility. Claims have been raised against icl as a mechanism overly focused on the legal fiction of an individual perpetrator, obscuring the true collective dimension of the crimes. Despite these criticisms, icl has incorporated a mechanism to address this collective dimension, at least on the side of the victims: collective reparations. However, the emerging use of collective reparations faces important challenges in an avenue based on an individual-perpetrator logic. Here, I identify current difficulties in the early practice of collective reparations in international criminal justice. These difficulties relate mainly with procedural issues and the role of the ‘adjunct mechanisms’ such as the Trust Fund for Victims (tfv). I submit that these difficulties reflect the inherent tensions present in the asymmetrical treatment of the collective dimension of the crimes

Forced Marriage during Conflict and Mass Atrocity

2017 ◽  
Author(s):  
Valerie Oosterveld
Keyword(s):  
Human Rights ◽  
Sierra Leone ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Forced Marriage ◽  
Refugee Law ◽  
Mass Atrocity

This chapter describes how forced marriage has been treated by international human rights law. It shows how non-consensual marriage has been overlooked in refugee law, even when evaluating claims by refugees fleeing conflict. The chapter also analyzes forced marriage in international criminal law, focusing on the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. It demonstrates how international criminal law has introduced confusion over how to define and how to charge forced marriage. The chapter suggests that the lack of coherent analysis calls for more consideration of whether and how human rights, refugee, and criminal conceptions of forced marriage fit together, and advocates greater synergy and coherency.

Historical Base and Legal Superstructure

2021 ◽  
pp. 129-144
Author(s):  
Michele Tedeschini
Keyword(s):  
Criminal Law ◽  
Historical Perspective ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Historical Inquiry ◽  
Political Responsibility ◽  
Cast Doubt ◽  
Mass Atrocity ◽  
Agency And Structure

As international criminal law lives through an endless crisis, some commentators cast doubt on its suitability to confront episodes of mass atrocity. This chapter addresses the question of international criminal law’s necessity from a historical perspective, revisiting a moment in which the whole enterprise seemed on the verge of collapsing: Duško Tadić’s 1995 challenge to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY). Following out Susan Marks’s famous appeal, the analysis attempts to read both contingency and necessity into the reasoning which led the ICTY Trial and Appeals chambers to dismiss said challenge. It then claims that the judges’ approach can be interpreted through the lens of Pierre Bourdieu’s notion of habitus, internalised history orienting individuals towards certain choices and away from others. But even when the behaviour of specific agents is at stake, using the habitus as an explanatory tool keeps redirecting towards questions of structure. Accordingly, it appears that in instances of groundless adjudication like the Tadić challenge, where international law is called to pronounce on the foundations of the very practices it supports, structure determines outcomes much more than human agency does. Yet, noting that any analytical concept is an authorial construct—including contingency and necessity, agency and structure—the chapter concludes by problematising its own findings, and by reminding scholars of the political responsibility intrinsic to historical inquiry.

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