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The New International Criminal Court: An Uneasy Revolution
This collection of essays brings together jus post bellum and transitional justice theorists to explore the legal and moral questions that arise at the end of war and in the transition to less oppressive regimes. Transitional justice and jus post bellum share in common many concepts that will be explored in this volume. In both transitional justice and jus post bellum, retribution is crucial. In some contexts criminal trials will need to be held, and in others truth commissions and other hybrid trials will be considered more appropriate means for securing some form of retribution. But there is a difference between how jus post bellum is conceptualized, where the key is securing peace, and transitional justice, where the key is often greater democratization. This collection of essays highlights both the overlap and the differences between these emerging bodies of scholarship and incipient law.
Starting from the hypothesis of Nuremberg that labels the crime of aggression as the ‘supreme international crime’, this article assesses its validity and describes developments in international criminal law that seem to suggest the current marginalization of aggression among the crimes under international law. The fall of the crime of aggression will be illustrated by the retarding moments before it became a defined and internationally enforceable crime, by the comparatively restricted jurisdiction of the International Criminal Court and by the legal controversies surrounding its domestic implementation and prosecution.KeywordsCrime of aggressionSupreme international crimeInternational military tribunalInternational Criminal CourtDomestic jurisdictionImmunitiesCooperation
El presente trabajo tiene como finalidad contribuir a la reflexión acerca de la función de la CPI. El análisis toma como punto de partida los aportes del economista Amartya Sen acerca de la justicia; en particular su concepción de la justicia global, fundamentada en la defensa de los derechos humanos. Una de las contribuciones más importantes de Sen a la reflexión sobre la justicia ha sido su reivindicación de la inclusión de los derechos económicos entre los derechos humanos fundamentales. La interpretación del concepto de “derechos fundamentales” sirve aquí para incluir los derechos económicos entre aquellos que deben estar protegidos por la legislación internacional, porque las libertades protegidas mediante estos derechos son tan relevantes para desarrollar una vida digna como las libertades asociadas a los derechos civiles y políticos, por lo cual no existe ninguna razón para condenar a los violadores de los derechos fundamentales en un caso y no hacerlo en el otro caso. En este capítulo se estudia la repercusión de esta inclusión sobre el DIP y la función de la CPI, haciendo énfasis en la necesidad de una mayor consideración de las violaciones de los derechos humanos económicos.
El manuscrito que se presenta en este prólogo tiene como título
La función de la Corte Penal Internacional: visiones plurales desde
una perspectiva interdisciplinar. A ello se une el subtítulo Volumen
Especial por el X Aniversario del Instituto Ibero-Americano de La
Haya para la Paz, los Derechos Humanos y la Jusiticia Internacional.
En consecuencia, dos son los aspectos principales que se abordan en
las siguientes líneas. Por un lado, una breve introducción al trabajo de
investigación coordinado por los profesores Olasolo, Urueña-Sánchez
y Sánchez Sarmiento, a través del análisis de sus objetivos principales.
Por otro lado, la presentación del Instituto Ibero-Americano de La
Haya para la Paz, los Derechos Humanos y la Justicia Internacional (IIH o Instituto) y de sus principales actividades en los diez años
transcurridos desde su fundación el 1 de junio de 2011.
Con respecto a la primera cuestión, se puede identificar tres objetivos principales a los que se dirige el manuscrito objeto de la presente
publicación. En primer lugar, busca proporcionar una visión interdisciplinaria más amplia sobre la función de la CPI a través del diálogo
entre las aproximaciones filosóficas y teológicas por una parte, y los
enfoques desde el DI y las RI por otra. En este sentido, conviene tener
en cuenta que, si bien hasta el momento la doctrina se ha limitado en
gran medida a estudiar la CPI desde perspectivas de análisis tradicionales basadas en el positivismo jurídico, no es menos cierto que una
comprensión holística de las condiciones que han favorecido la constitución y la consolidación de la CPI como institución requiere ir más
allá del análisis del ECPI y de los instrumentos internacionales que
lo complementan, para promover el diálogo con aquellas otras disciplinas que explican ciertas variables de su funcionamiento. De esta
manera, tanto la filosofía como la teología tienen mucho que aportar
en relación al tratamiento de las atrocidades masivas en las sociedades humanas y en la sociedad internacional, y por lo tanto son ciertamente relevantes a la hora de interpretar la función del único tribunal
internacional penal permanente (la CPI) que ha sido establecido hasta
el momento para investigar y enjuiciar a sus máximos responsables.
On July 17, 1998, the world community voted on the Rome Statute for the International Criminal Court (ICC,) which, if ratified by 60 countries, would establish for the first time in history, a permanent international criminal tribunal. The outcome was an overwhelmingly favorable vote, with 120 countries voting in favor, 21 abstentions, and 7 countries, including the United States, against. The idea of an international criminal court appeared to be in the making.
The fall of the Soviet Union in combination with the failures of the international community to intervene in the genocides of the former Yugoslavia and Rwanda spurred a new enthusiasm for human rights as a wholly independent movement, termed the human rights wave. This paradigm shift, identified by Stefan-Ludwig Hoffmann, was an embrace of human rights rooted in the redemption of past wrongs. This project is structured as a jurisprudential genealogy that will explore the human rights wave in the context of the Women’s Caucus for Gender Justice, a facet of the transnational women’s network, and their quest to mainstream sexual and gender based violence into law at the International Criminal Court.
Timing was essential to the Women’s Caucus for Gender Justice’s formation before the Rome Conference. At the same time as the human rights wave characterized by Hoffmann emerged, a furor for anti-impunity prosecutions engulfed the focus of the international community. These two phenomena came together at a time in which organizing at the United Nations over gender issues was about to reach a fever pitch. The thirst for anti-impunity sparked a renewed interest in international criminal tribunals, resulting in the ad hoc tribunals and the International Criminal Court forming throughout the 1990s. This project argues that the confluence of these aforementioned events provided the Women’s Caucus for Gender Justice with a fortuitous opportunity to ride the human rights wave and institutionalize gender in a way that other activists would not be able to accomplish in contemporary times.
Sexual violence constitutes a set of offences established by international law, particularly after the establishment of the ad hoc International Criminal Tribunals and the permanent International Criminal Court. This chapter presents an overview of the situation regarding gender-based violence in the recent and ongoing Russian-Ukrainian dispute over Crimea. Especially in the regions of Eastern Ukraine, many cases of human rights violations, including evidence of sexual violence in the areas affected by military operations, are recorded in the reports of various international bodies. Meanwhile, Ukrainian non-governmental organizations (NGOs) working for gender equality have presented findings highlighting incidents of sexual violence that are punishable under the International Criminal Court’s statute, including threats of rape and other forms of sexual violence, as well as methods of ill-treatment and torture in the context of sexual abuse, primarily against women and men. Considering that the Russian-Ukrainian war is still under preliminary examination by the International Criminal Court, the breakdown in the rule of law in conflict-affected areas in Ukraine has increased the vulnerability towards sexual and gender-based violence, including both crimes related to the jurisdiction of the Court, and also domestic sexual violence. The related reports have shown that there is not much information on the armed conflict situation in Ukraine in which sexual violence has been widely or systematically employed against civilians in general. As documented, most incidents of sexual violence have taken place under a regime of the illegal detention of women, often followed by various forms of sexual violence against them by members of illegal armed forces. The International Criminal Court is conducting an in-depth analysis of received information related to this conflict in order to establish a reasonable connection between the alleged crimes and the jurisdiction of the court. The main question in the case of the Russian-Ukrainian war is whether the International Criminal Court, as a permanent and established holdover of international criminal justice will continue to face, in addition to its statutory provision, crimes against sexual violence to the extent they deserve, given their heinous nature and the particular and growing needs of the victims.
This chapter examines the orientation of the Rome Statute towards a new assessment of the contextual elements of the crime of genocide. The Elements of Crimes represented a novel addition with very little guidance on its status or interpretation, or what purpose it intended to serve in light of the identical reproduction of the Genocide Convention’s definition of genocide. This chapter evaluates the substantive and normative nature of the contextual elements of genocide in light of these new developments in the Rome Statute. It examines the need for the concept of the EoC through its evolution during the drafting process. Then, the contextual element is interpreted through the provisions of the Rome Statute to determine its legal position according to the current wording of Articles 9 and 21. The chapter puts forward a case for new assessment, and confirms that the contextual element of Article 6 of the Rome Statute adds nothing to the definition of genocide and thus can only be explained by two roles: first, by the need for jurisdictional limitation of the new court—the ICC—and second, to avoid trivialization of the court by allowing prosecution of a lone génocidaire. Hence, the only way that the last common element of the EoC of genocide can be reconciled with the definition of genocide, is to consider this element as a jurisdictional element, thus the court can apply it as such to filter the admissibility of small-scale and lone-perpetrator crimes to the ICC.
On February 26 2011, the UN Security Council unanimously adopted Resolution 1970 referring the situation concerning Libya to the International Criminal Court (ICC). Th is unprecedented support for and acknowledgment of the ICC did not come without a price: conditio sine qua non for Council members not party to the ICC was the inclusion of operative § 6 into the resolution, which exempts certain categories of nationals of non-parties from ICC jurisdiction. Th e same highly controversial exemption was included in the Security Council’s referral of the situation in Darfur to the ICC in 2005. Deviating from the Rome Statute’s jurisdiction regime such practice not just poses challenges to principles of international criminal justice but raises the question whether the Rome Statute is altered by the resolution containing the referral to the effect that the ICC is being bound to the exemptions contained in its exercise of jurisdiction. Addressing these issues, the present paper elaborates firstly on the jurisdictional exemption of § 6 and its effect on the ICC, followed by a discussion of resulting challenges to the principle of legality, the principle of universal jurisdiction for international crimes, the equality of individuals before the law and the principle of independence of the court.
[Updated chapter 4 available to download]
The Rome Statute for the International Criminal Court (‘ICC’) provides that nationals from
states not party to the Statute may, in certain circumstances, be prosecuted by the ICC. Some
non-party states vehemently object to the fact that the ICC, a treaty body, can exercise
jurisdiction in situations where the state of nationality has not consented to the terms of the
treaty. While the source of the ICC’s jurisdiction is the Rome Statute, the Statute on its own
does not provide a legal justification for the scope of the Court’s jurisdiction. This thesis
addresses the overarching question: On what legal basis is the ICC authorised to exercise
jurisdiction over nationals of non-party states?
A general consensus has emerged among international criminal law scholars that in situations
referred to the Court by states parties or in investigations initiated by the prosecutor, the
legal basis for the ICC’s jurisdiction over nationals of non-party states is predicated on states
parties delegating jurisdiction to the Court. But there are multiple situations in which the
question of whether there is a legal basis for prosecution of nationals of non-party states is
not as straightforward as simply proclaiming that the territorial state has delegated its
jurisdiction to the Court.
This thesis provides a systematic and comprehensive analysis of the ICC’s jurisdiction over
nationals of non-party states in order to determine whether there is a legal basis for the ICC
to prosecute such nationals in all scenarios allowed by the Rome Statute. In situations that
come before the Court via a state party referral or through a Prosecutor-initiated
investigation, I argue that delegation of jurisdiction provides a legal basis for the ICC’s
prosecution in all scenarios with the exception of incumbent senior state officials from nonparty
states, who remain immune from the Court’s jurisdiction. In situations that are referred
to the Court by the UN Security Council, the legal basis for the ICC’s jurisdiction over
nationals of a non-party state is predicated on the indirect consent of the relevant non-party
state by virtue of that state’s membership of the UN. There remain, however, some questions
about whether certain Council actions in relation to the ICC are intra vires the UN Charter.
Ultimately, I demonstrate that the ICC has missed a number of opportunities to clarify the
legal basis for its jurisdiction over nationals of non-party states. Going forward it will be
essential for the Court to respond to challenges to its authority over non-party nationals by providing a sound -- and comprehensive -- explanation as to how and why its jurisdiction is grounded in international law.
The International Criminal Court (ICC) has entered into its second decade of operations and has established itself at the centre of an international criminal justice system and protection of human rights, comprising also domestic jurisdictions and other international courts and tribunals. However, many challenges continue to face the ICC and, indeed, such challenges are part of its own features and stem from the specificities of international law and relations. In this article we shall discuss, in light of recent events, four of such challenges: 1) universality; 2) complementarity; 3) cooperation; and 4) the crime of aggression. These challenges illustrate how the ICC and international criminal justice inhabit both the spheres of justice and politics and how these two aspects have to be taken into account in order for such challenges to be overcome, so that the mission of a permanent and central instrument for the fight against impunity, that historically started in Rome in 1998, becomes an inherent part of today's world.
The jurisdictional relationship between African states and the African Court of Justice and Human and Peoples’ Rights and between the latter Court and the International Criminal Court is not entirely clear. While the Malabo Protocol (Annex) has borrowed the complementarity principle from the Rome Statute, the Protocol does not indicate that states’ investigations or prosecutions should be genuine, in order to render a case inadmissible. Moreover, the Malabo Protocol (Annex) is completely silent on the African Court’s relationship to the International Criminal Court. This chapter first discusses whether the leaving out of the term “genuinely” bears any consequences on the assessment of the quality of the performance of states in respect of investigation and prosecution of international crimes. Next, it considers two alternative scenario’s—one in which the International Criminal Court is hierarchically superior to the African Court of Justice and Human and Peoples’ Rights and one in which both courts cooperate as equal partners. The author concludes that the latter model would be feasible if the International Criminal Court and the African Court of Justice and Human and Peoples’ Rights move towards a “division of labor”.
States have often criminalised conducts and have set up the criminal justice system at the domestic level to prevent the commission of crimes, as well as mechanisms to investigate, prosecute and punish any alleged criminal. However, these crimes are ordinary domestic crimes, which do not have the same definition, elements, impact and magnitude, as international crimes. The argument in this chapter is focused on the domestic prosecutions that are on-going in a few African states, namely, the DRC, Kenya, Uganda and Sudan, and to examine whether these prosecutions satisfy the requirement of complementarity. Granted that these prosecutions, may appear to close impunity gaps, it is argued that domestic prosecution of ordinary domestic crimes does not approximate complementarity-based prosecution because prosecuting on the basis of ordinary domestic crimes is not the same as prosecuting international crimes.
Despite the promises made after World War II to eliminate the commission of atrocities, crimes against humanity persist with horrifying ubiquity. Yet the absence of a consistent definition and uniform interpretation of crimes against humanity has made it difficult to establish the theory underlying such crimes and to prosecute them in particular cases. In the 1990s, several ad hoc international criminal tribunals were established to respond to the commission of atrocity crimes, ¹ including crimes against humanity, in specific regions of the world in conflict. Building on this legacy, in 1998 a new institution—the International Criminal Court(ICC)— was established to take up the task of defining crimes against humanity and other atrocity crimes and preventing and punishing their commission.
At the inception of the UN Charter era, the abominable excesses of totalitarian states in the Second World War prompted international jurists to create coercive global regimes to guard against the abuse of sovereign powers. In the post-Cold War era, however, a new challenge has emerged. The contemporary world is faced with an unprecedented incidence of fragile or failed states besieged by powerful insurgencies or criminal organizations. Where states were once assumed to be the villains in the human rights narrative, they are now often all that stands between a civilian population and a non-state group determined to commit massive human rights atrocities. The consequences of this new reality are reflected in the debate over the right of states to make ‘self-referrals’ under Article 14 of the Rome Statute of the International Criminal Court. Article 14 allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor for investigation. Since the Statute's inception, the self-referral mechanism has been the subject of considerable controversy among jurists. Some have argued that self-referrals are inconsistent with the independence of the Court and its complementarity scheme. However, recent developments demonstrate that a mutuality of objectives between the Court and fragile states exists when confronting large-scale atrocities by non-state actors. There is no reason why ICC enforcement cannot be variously cooperative and coercive vis-à-vis states, depending on the circumstances. The self-referral mechanism of the Rome Statute, when used judiciously, should thus be seen both as a useful weapon in the battle against impunity and a life-line for fragile states.
International organizations (or IOs)—intergovernmental entities established by treaty, usually composed of permanent secretariats, plenary assemblies involving all member states, and executive organs with more limited participation—are a twentieth-century phenomenon having little in common with earlier forms of institutionalized cooperation, including those in the ancient world. The story of how, shortly after the turn of the last century, the Euro-American lawyers that dominated the field of international law sought to transcend the chaos of war by “moving to institutions” has been told elsewhere and needs no repeating here. David Kennedy, Martti Koskenniemi, and David Bederman, among others, have described the disparate individuals, separated by nationality, juridical philosophy, and competing “idealist”/“realist” schools of thought, who nevertheless shared a messianic, quasi-religious, and coherent “internationalist sensibility” that sought to institutionalize multilateral diplomacy with a view to promoting civilization and progress. Kennedy locates the move to international organization in turn-of-the-century reformist aspirations for parliamentary, administrative, and judicial mechanisms that, in the Victorian language of the day, would convert “passion into reason.” By the time this Journal was established, the Congress of Vienna’s concert system had provided a model for an incipient (albeit only periodic) pseudo-parliament; diverse public administrative unions and river commissions suggested the possibilities for international administration and even the interstate pooling of funds; and the Permanent Court of Arbitration presaged an international judiciary.
Despite lying at the heart of the functionality of the International Criminal Court (ICC), Article 17 of the Rome Statute, which embodies the complementarity principle, fails to address a number of key issues surrounding the operation and interpretation of this pivotal regime. Specifically, the Statute neglects to delineate the standard of proof that must be met in order for the Court to find that a state is unwilling or unable to carry out an investigation or prosecution. What is more, there is scant guidance as to which party should bear the burden of proof in this regard. Further enlightenment on these issues is unlikely to be distilled from the Rules of Procedure and Evidence. These statutory gaps required Trial Chamber III to recently determine the issues of burden allocation and the requisite standard of proof in the Bemba case. However, it remains to be seen whether the Chamber's position ought to extend to the multitude of scenarios in which the Court may be called upon to rule on admissibility. Likewise, whether the Chamber's approach will be – or should be – endorsed by the ICC Appeals Chamber remains an open question. In considering these crucial operational elements of the regime, this chapter will look at burdens and standards of proof both generally and in specific relation to complementarity, considering the potential scenarios that may arise in relation to state referrals, proprio motu investigations and, in particular, Security Council referrals. Rather than provide definitive answers regarding the questions of applicable burdens and standards of proof, this chapter aims to contribute to the dialogue on these issues, first and foremost by examining the emerging ICC jurisprudence, while also drawing upon the experience of other courts operating in the international and municipal realms, including the practice of the UN ad hoc tribunals.
The Rome Statute of the International Criminal Court defines more than ninety crimes that fall within the Court’s jurisdiction: genocide, other crimes against humanity, war crimes and aggression. How these crimes are interpreted contributes to findings of individual criminal liability, and moreover affects the perceived legitimacy of the Court. And yet, to date, there is no agreed-upon approach to interpreting these definitions. This book offers practitioners and scholars a guiding principle, arguments and aids necessary for the interpretation of international crimes. Leena Grover surveys the jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda before presenting a model of interpretive reasoning that integrates the guidance within the Rome Statute into articles 31-33 of the Vienna Convention on the Law of Treaties(1969).
During a sabbatical in the fall of 2008, I had the unique experience of serving as special assistant to the international prosecutor of the Extraordinary Chambers in the Courts of Cambodia (ECCC), the tribunal created by the United Nations and the government of Cambodia to prosecute the former leaders of the Khmer Rouge for the atrocities committed during its reign of terror (1975–79). During the time I spent in Phnom Penh, my most important assignment was to draft the prosecutor's brief in reply to the Defense Motion to Exclude “joint criminal enterprise” (JCE), and in particular the extended form of JCE known as JCE III, as a mode of liability from the trial of the five surviving leaders of the Khmer Rouge.
JCE III is a form of liability somewhat similar to the Anglo-American “felony murder rule” in which a person who willingly participates in a criminal enterprise can be held criminally responsible for the reasonably foreseeable acts of other members of the criminal enterprise even if those acts were not part of the plan. Although few countries around the world apply principles of coperpetration similar to the felony murder rule or JCE III, since the decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the 1998 Tadić case, it has been accepted that JCE III is a mode of liability applicable to international criminal trials.
This chapter focuses on the legal discourse of the most legalized occupation in world history - Israeli control of the Occupied Palestinian Territory (OPT) - to posit that more laws may not only fail to generate more justice, but may actually facilitate, sustain, and legitimize this failure. The argument rests on two interrelated propositions: first, that the Israeli control of the OPT is an illegal occupation, the defining feature of which is the blurring of boundaries, both physical and legal, which has culminated in the reversal of the relationship between the rule and the exception. The second proposition focuses on the normative implications of this regime. It suggests that once law is implicated in the shaping of such a regime, law itself becomes infected, and is likely to operate in a manner that will defy its normative purpose on both an individual and a systemic level: its application to individual cases (through judicial review) would typically entail a 'dynamic' interpretation designed to advance the interests of the occupying power at the expense of the occupied people and it will contribute to and facilitate the formation of an environment (indicative of a systemic state policy) of tolerance towards systematic violations of human rights. This tolerance, in turn, may transform grave such violations from war crimes into crimes against humanity. This 'pathoLAWgy' provides the proper context for understanding both the manner with which the most recent military operation in Gaza ('Operation Cast Lead', 27 December 2008-18 January 2009) was exercised and the consequential Report of the Goldstone Committee.
There are many variables of territoriality available to national courts under contemporary international law. Does the same apply to the International Criminal Court? And if so, what are the limits to the teleological expansion of the Court's territorial jurisdiction as regards, for example, partial commission of a crime in State not Party territory, crimes committed over the internet or crimes committed in occupied territories? Michael Vagias's analysis of the law and procedure surrounding the territorial jurisdiction of the Court examines issues such as the application of localisation theories of territoriality and the means of interpretation for article 12(2)(a); the principle of legality (nullum crimen sine lege) and human rights law for the interpretation of jurisdictional provisions; compétence de la compétence; crimes committed over the internet; and the procedure for jurisdictional objections.
Some international tribunals, such as the Iran-U.S. claims tribunal and the trade-dispute panels set up under GATT, are "dependent" in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter-American Court of Human Rights, and the new International Criminal Court, are "independent" in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than are dependent tribunals. We argue that the evidence does not support this view, and, moreover, that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. We also argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with skeptical predictions about the International Criminal Court and the International Tribunal for the Law of the Sea, the newest international tribunals.
Of the many expectations attending the creation of the first permanent International Criminal Court, the greatest has been that the principle of complementarity would catalyse national investigations and prosecutions of conflict-related crimes and lead to the reform of domestic justice systems. Sarah Nouwen explores whether complementarity has had such an effect in two states subject to ICC intervention: Uganda and Sudan. Drawing on extensive empirical research and combining law, legal anthropology and political economy, she unveils several effects and outlines the catalysts for them. However, she also reveals that one widely anticipated effect – an increase in domestic proceedings for conflict-related crimes – has barely occurred. This finding leads to the unravelling of paradoxes that go right to the heart of the functioning of an idealistic Court in a world of real constraints.
This article examines the feasibility of bringing an application to the International Court of Justice, under the terms of Article IX of the Genocide Convention or Article 36 of the Statute of the Court. It concludes that such an application would be legally feasible and political desirable and that the failure of any state thus far to institute proceedings before the Court is an indefensible abdication of international responsibility.
Supranational adjudication in Europe is a remarkable and surprising success. Europe's two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such "supranational" jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a "community of law," a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a "checklist" of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions' effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly "court-like." Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law.
At its forty-fifth session in 1993, the International Law Commission took note of the report of a working group containing a Draft Statute for an International Criminal Tribunal, and transmitted that report to the General Assembly for comment. This is the second stage in a process that began in 1992, when the Commission established a Working Group on an International Criminal Court, which laid down the basic parameters for a draft statute. Its general approach was endorsed by the Commission and subsequently by the General Assembly. The Draft Statute adopted by the working group in 1993 gives effect to that approach, although with a number of refinements and much added detail. The third stage of the process is intended to occur in 1994, when the Commission hopes to adopt a final version of the Draft Statute, taking into account comments made on it at the General Assembly and elsewhere. The purpose of this Note is to outline the provisions of the Draft Statute, in the hope of furthering understanding and discussion of its provisions.
Twenty-five years ago, the Allied nations gathered at San Francisco in the warming glow of victory and signed a solemn treaty giving effect to their determination “to save succeeding generations from the scourge of war …” and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …” Specifically, they undertook in Article 2(4) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …” They also committed themselves to “settle their international disputes by peaceful means …”
Since World Wasr II, America has styled itself the "leader of the free world." But to get its way, the United States has ignored the American public and used covert action, sabotage, and threats against hapless foreign countries. This is not true leadership. To lead in the 21st century, the United States will have to learn to acknowledge the world outside its borders and listen to others' opinions, act in partnership with other nations, and get used to persuading allies rather than browbeating them. Given its penchant for secrecy and long history of avoiding "entangling alliances," America does not seem up to the challenge.
The only certainties in today's world are that geopolitics are becoming more multipolar and that America will not stay on top forever. But the United States can protect its interests by embracing and defining the new multipolarity--rooting it in norms of state behavior rather than just a balance of power. This means fostering international cooperation (so as not to do too little) and developing a set of guidelines for intervention (so as not to do too much). Trading some American power for a more stable international system would be a good deal for America and the world.
Professor Orentlicher addresses the problem of whether and on what basis a successor government must prosecute the human rights abuses of a prior regime. Contending that the rule of law requires that the very worst crimes be prosecuted, she argues that principles of international law, customary and conventional, impose a duty to investigate and prosecute the most serious violations. Transitional societies serve the obligation to protect human rights best, not when they prosecute every prior violation, nor when they allow all past violators to go unpunished, but when those most responsible for the past system and the most notorious human-rights violators are brought to justice. The Article concludes with a suggestion that human-rights values may be promoted both through further elaboration of international law standards and through vigorous application of present law.
The unipolar moment has passed. Even old allies stubbornly resist American demands, while many other nations view U.S. policy and ideals as openly hostile to their own. Washington is blind to the fact that it no longer enjoys the dominance it had at the end of the Cold War. It must relearn the game of international politics as a major power, not a superpower, and make compromises. U.S. policymaking should reflect rational calculations of power rather than a wish list of arrogant, unilateralist demands.
Central to the World Court’s mission is the determination of international custom “as evidence of a general practice accepted as law.” Students of the Court’s jurisprudence have long been aware that the Court has been better at applying customary law than defining it. Yet until Nicaragua v. United States , little harm was done. For in the sharply contested cases prior to Nicaragua , the Court managed to elicit commonalities in argumentative structure that gravitated its rulings toward the customary norms implicit in state practice. The Court’s lack of theoretical explicitness simply meant that a career opportunity arose for some observers like me to attempt to supply the missing theory of custom.
Most of the world rejoices when a new government takes the reins of power from a repressive regime. For the families and friends of those killed or "disappeared" by death squads, however, the new regime may bring no relief. Without an affirmative obligation to investigate and prosecute past human rights abuses, governments may officially forget past misdeeds in an attempt to promote national unity or to avoid confrontations with the military. This Comment demonstrates that in fact an obligation to investigate and prosecute certain grave human rights violations exists in both conventional and customary international law. The author argues that governments should recognize the obligation, since it reflects an emerging consensus in international law. The Comment examines the policy implications of adopting this affirmative obligation, and concludes that it would well serve the cause of human rights and democracy.
This article focuses on the efforts of voluntary associations, rooted in a global consciousness, to address the negative impacts of globalization. In part, this encounter reflects the extent to which globalization has been unfolding in recent years in an ideological climate of neo-liberalism. As a result, there has been steady downward pressure on the social agenda of governments and international institutions. Globalization-from-below represents an overall effort to moderate market logic by reference to the following values embodied in “normative democracy”, a view of democracy that takes account of the emergence of global village realities: consent of affected peoples; rule of law in all arenas of decision; human rights; effective modes of participation; accountability; support for public goods to address basic needs; transparency; and non-violence as a principle of public order.