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Frankenstein’s Monster
Abstract
International criminal courts often seek to borrow concepts and procedures from different legal systems, merging the cultures
of the common law and of the continental system, and applying a human rights analysis to criminal law problems. Most international
tribunals are based on the adversarial system, but recent hybrid courts have firm foundations in the inquisitorial system.
This article addresses the way in which judges have sought to take concepts from domestic criminal justice systems and from
human rights law, and suggests that while there are new possibilities that arise from the bringing together of different legal
cultures there are also risks, with grave implications for the rights of the accused. These include issues such as the right
of access to a lawyer at the earliest opportunity, the length of pre-trial detention, the preparation of witnesses for trial
and possibility of trial in absentia.
... Hybrid courts came next but they have not resolved the financial dilemmas of transition or reduced the power of donors (Skilbeck 2010;Mendez 2009). They incorporate both international and national features (judges, prosecutors and support staff), and apply a mix of international and national law. ...
The prescription of transitional justice (TJ) has become the norm when societies emerge from violent conflict and/or political repression. Because of the realities of most post-conflict situations, funding and logistical support for TJ comes primarily from international sources. Post-conflict situations vary, but there has developed internationally a template of TJ tailored to attract international support and resources and a self-reinforcing dynamic is emerging: the international community insists that TJ processes must conform to international norms and standards, donors look to invest their monies in trusted mechanisms, a professionalised contingent of scholars and practitioners provides expertise and promises outcomes, and recipient governments, NGOs and other practitioners synchronise their performance with donor expectations and demands. This paper interrogates the ethical dilemmas when TJ is donor driven, points out some of the dangers when TJ is externally defined, de-contextualised, technicised and results oriented, and suggests some alternative ways of approaching transitions.
Justice and the idea of the moral good pervade legal philosophy and underlie much of legal practice in different contexts. They are particularly resonant in the law of equity and the remedies it makes available. This article uses equity and conceptions of justice explores the role of narratives, fairness and values through the lens of the constructive trust, science fiction, temporality, the counterfactual imagination and creativity. This special edition’s theme of intersectionalities within law is a central analytical thread. Power dynamics and the place of equity in social dialogues around justice and fairness are set alongside socioeconomic vulnerability and othering in understanding how the law succeeds and fails in managing emerging inequalities. A lack of autonomy and voicelessness is often revealed through constrained access to law and legal services, as well as a more vulnerable relationship with time. Engaging the constructive trust provides interesting opportunities to examine the role of the trust within law, and through that explore wider discussions about the nature of legal systems and the remedies they may give rise to. Science fiction has always provided opportunities to create counterfactual worlds and engage hypothetical questions, many of which might illuminate contemporary debates or resonate forward to emerging concerns. Imagination is a central tenet of these worlds, as well as, increasingly, within law when faced with emerging technologies and the issues they present. The article concludes with an acknowledgement that such narratives and opportunities to question social norms can be a valuable tool in grounding societal change.
This chapter reconceptualise the ICC as a ‘bulwark against evil’ by demonstrating that the ‘primary purpose’ of the ICC is to combat evil. The chapter starts by portraying the ICC as the culmination of a legal framework that seeks to protect the very idea of humanity. In a subsequent step, I reject legalistic attempts to portray the ICC as an exclusively legal, even anti-political, judicial body and develop a picture of the ICC as a ‘political actor’ that is a tool in the global struggle against evil. In the final section, the chapter probes the pivotal role of the ICC prosecutor in this struggle. Drawing on Aristotle’s conception of phronesis, I argue that it is his/her ability to exercise moral-political judgement that primarily determines whether ICC intervention is conducive or deleterious to the primary purpose of combatting evil.
Cambridge Core - Human Rights - Model(ing) Justice - by Kerstin Bree Carlson
Der IStGH ist das internationale Strafgericht der Zukunft. Durch ihn wird Völkerstrafrecht direkt, d.h. unmittelbar, auf internationaler Ebene durchgesetzt. Er basiert, wie bereits erwähnt (s. 4 Rn. 6) auf einer vertraglichen Grundlage, dem am 17.7.1998 verabschiedeten und am 01.07.2002 in Kraft getretenen Römischen Statut für den IStGH. Damit steht er auf solidem völkerrechtlichem Boden und ist nicht den gleichen Zweifeln ob der Legalität der Einrichtung ausgesetzt wie seine „Vorgänger“, der IMT, IMTFO, der JStGH oder der RStGH (vgl. 4 Rn. 12). Er ist eine internationale Organisation mit eigenständiger Völkerrechtssubjektivität (Art. 4 Abs. 1 IStGHSt).
It is commonly agreed that international criminal law (ICL) is a ‘hybrid’ legal culture, which mixes the legal traditions of the common law and civil law. However, the precise nature of this legal culture remains a contentious legal and theoretical issue. The paper identifies the two dominant models of ICL within these debates as either a clash of cultures or a sui generis system, and shows how neither satisfactorily engages with the concept of legal culture itself. To address this problem, the paper develops a new account of ICL as a global legal culture. The paper first identifies the distinctive ‘cultural logic’ of ICL, drawing on the example of recent developments in sexual violence offences. It then examines how ICL takes a global legal form, which ‘globalizes’ liberal legal culture. Finally, the paper shows how this process of making the legal culture of ICL ‘global’ creates its cultural contradictions, but also enables the possibility of making a new legal culture at the international level.
International criminal justice is based to a large extent on extrapolations from criminal-law research on domestic systems. The difficult exercise of arriving at a common denominator is exacerbated by the systemic dichotomy of the so-called common-law and civil-law models, which, in turn, have now been joined by a third contender: public international law. Each of these has its own methods of approaching the task of solving legal problems. This paper queries the inter-model conversation that is happening so far and asks the question as to whether it is necessary to hold this discussion at a much more fundamental level than it would seem has been the case so far. It does so at the example of the relationship between German and English and Welsh law, but its concerns and conclusions merit consideration for the entire debate between the systems.
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