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The Making of Global Legal Culture and International Criminal Law

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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.

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On 28 and 29 October 2011, a conference was held in The Hague on International Criminal Law (ICL) as a cultural and legal hybrid. The aim of the conference convenors was to facilitate an exchange of thoughts between legal scholars, practitioners, and social scientists on the nature of ICL and to discuss the role (legal) culture plays in international criminal justice. The recent discussion is dominated by the adversarial (common law)–inquisitorial (civil law) dichotomy and centres on the hybrid nature of the procedure in international criminal law. The debate focuses on how a fair and efficient trial can be safeguarded by observing the rights of the accused and other participants through an operational criminal procedure. Sometimes, this clash of legal systems has become an end in itself, resulting in a debate on which system is superior. At least in theory, however, modern international criminal procedural law seems to have overcome the adversarial–inquisitorial dichotomy, since it combines features of both common- and civil-law systems. This unique compromise structure poses a challenge to the practitioners who – although trained in and influenced by their respective national systems – have to apply the procedural norms at the international level and, in doing so, find an appropriate balance between adversarial and inquisitorial features. This is even more challenging since the single elements of the different legal traditions do not fit together seamlessly, leading to myriad, heated disagreements over how to combine them into a single, coherent, workable legal system.
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There has been a well-documented `cultural turn' in social theory. This takes two forms: the `epistemological' case in which culture is seen as universally constitutive of social relations and identities; and the `historical' case in which culture is seen as playing an unprecedented role in constituting social relations and identities in contemporary society. In this paper I take it that both cases overlap in studies of contemporary society and that the stronger case is justified. I argue that a model of cultural politics is necessary to fully develop the impetus of the `cultural turn' away from structural determinism, and that relations between the state and society should no longer be taken as the central focus of political sociology. I propose that the understanding of politics developed by Foucault in his later work on power and domination can provide the basis of a `cultural turn' in political sociology. Finally, I offer some suggestions about how those working in the field of political sociology are already beginning to develop the theme of cultural politics - albeit without naming it as such - and how this might be extended.
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In seeking inspiration for change, it is perhaps natural for lawyers to go browsing in a foreign law boutique. But it is an illusion to think that this is a boutique in which one is always free to purchase some items and reject others. An arrangement stemming from a partial purchase - a legal pastiche - can produce a far less satisfactory fact finding result in practice than under either continental or Anglo-American evidentiary arrangements in their unadulterated form.
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As events in Bosnia unfolded, American feminists found themselves wondering about the relevance of their theories of rape beyond North Atlantic shores. Their analyses provide excellent ways of thinking about gender and rape in war, yet they're limited by an impoverished concept of ethnicity. To think comparatively about rape in war, we must understand gender's relationship to ethnicity in more complicated ways. Bosnia provides the place to see this most clearly.
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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.
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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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Since the late 1940s, economic considerations relating to the globalisation of world markets have led an ever larger group of Western European countries to unite in the quest for a supra-national legal order which, in time, generated the European Community. Most of these countries' legal orders claim allegiance to what anglophones are fond of labelling the “civli law” tradition, ¹ although two common law jurisdictions joined the Community in the early 1970s. The European Community's early decision to promote economic integration (and, later, other types of integration) through harmonisation or unification has involved, at both Community and national levels (for the implementation of Community rules in the member States carries the adoption of national rules in all member States), a process of relentless “juridification”; law, in the guise of legislatively or judicially enacted rules, has assumed the role of a “steering medium”. ² This development was foreseeable: once the interaction among European legal systems had acted as a catalyst for the creation of a supra-system, ³ the need to achieve reciprocal compatibility between the infra-systems and the supra-system naturally fostered the development of an extended network of interconnections (such as regulations and directives) which eventually raised the question of further legal integration in the form of a common law of Europe.
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Critical to analysing the recent synthesis of criminal trial procedures is an understanding of the internationalisation of criminal law and procedure. ¹ As well as the creation of international tribunals ² to investigate and try crimes of world significance, there is emerging an international jurisprudence on criminal law (and procedural hybrids to support and develop this) which require integrated analysis.
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  Who counts as a subject of justice? Not so long ago, it was widely assumed that those “who counted” were simply the citizens of a bounded territorial state. Today, however, as activists target injustices that cut across borders, that “Westphalian” view is contested and the “who” of justice is an object of hot dispute. This new situation calls for a new kind of justice theorizing, whose contours I sketch in this essay. Arguing, first, for a reflexive mode of theorizing, I introduce the concept of “misframing”, which can subject the Westphalian “who” to critical scrutiny. Arguing, second, for the necessity of a substantive normative principle to evaluate competing “who’s”, I introduce the “all-subjected principle” as superior to three better known alternatives: namely, membership, humanism, and the all-affected principle.
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This article analyzes the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) through the lens of comparative law. The article shows that while in its first phase (1993-98), ICTY adopted a predominantly adversarial model to prosecute international crimes; in its second phase (1998-2005), ICTY adopted a managerial judging model. In this way, the article challenges the two existing characterizations of ICTY procedure by showing that this procedure is neither unique because other jurisdictions have also adopted managerial judging, nor an undefined hybrid system. The article aims not only at putting the ICTY procedure under a new light, but also identifying the features that characterize managerial judging as a procedural model. In addition, it emphasizes that we can analyze procedural models not only as different techniques to handle legal cases, but also as procedural cultures, legal identities and ways to distribute powers and responsibilities between the main actors and institutions of the administration of justice. Finally, the article shows that international policy-makers should take into account path dependence considerations when designing procedures or international tribunals.
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In the legal process, there are fewer ubiquitous cognitive problems than is often thought. Optimal fact-finding arrangements depend on a variety of factors, so that those intent on improving these arrangements face different problems in different procedural settings. In examining factors with a bearing on best fact-finding practices, the author focuses first on factors that are internal to legal culture, such as the varying profile of decision-makers, the type of proceedings, and the objectives of justice. He then explores the influence of extra-legal factors, such as the role of political ideology, governmental structure, and the general cultural context on adjudicative fact-finding. Special attention is given to the question of whether radically different cultural environments render their proof-technologies discontinuous, or incommensurable. The paper ends on a cautionary note, suggesting that the absence of a suitable taxonomy of facts subject to proof makes it very difficult to apply the insights of cognitive science to factual inquiries in adjudication.
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International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence of domestic procedural law. This suggests a theoretical insight: the anti-impunity norm and its concern with punishment should be read in tandem with a meta-theory that emphasizes that international criminal procedure has an irreducibly intrinsic value because it returns legal process to procedural vacuums. The present literature generally ignores this non-consequentialist value. In addition to this theoretical reorientation, several practical consequences follow, including a revised understanding of the principle of legality, the importance of local procedures, the use of guilty pleas and plea bargaining, and in absentia trials. Although the meta-theory does not dictate which of these procedural devices should be used, it does provide a new standard with which to evaluate them.
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Recent efforts to develop and implement progressive models of transitional justice have been significantly influenced by major developments in the law concerning sexual violence in armed conflict. In particular, the International Criminal Tribunal for the former Yugoslavia has pioneered accountability for sexual violence against women in armed conflict. This article takes the ICTY as a case study of how gender can structure the accountability mechanisms of transitional justice. The article analyses how legal norms and practices instantiate and reiterate, rather than transform, existing hierarchical gender relations. It considers the existing models of sexual violence as a criminal harm under international law, and then examines gendered patterns of legal practice in ICTY prosecutions. To address this engendering of transitional justice, the article produces a new model of the harm of sexual violence in conflict, suggests the development of a new international offence of sexual violence and generates different strategies for international prosecutions of sexual violence.
Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals
  • Van Schaak
To “Establish Incredible Events by Credible Evidence”
  • Wald
Pashukanis and the Commodity Form Theory
  • Norrie
The Move from Oral to Written Evidence
  • Kay
The Competing Visions of Fairness
  • Damaska
Democratic Legitimacy and the International Criminal Court: A Liberal Defence
  • Fitchelberg
The Cultural Turn in Social Theory
  • Nash
Frankenstein's Monster’: Creating a New International Procedure
  • Skilbeck
  • Rawls