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ПОКАРАННЯ У МІЖНАРОДНОМУ КРИМІНАЛЬНОМУ ПРАВІ: МАПУВАННЯ ВИКЛИКІВ НА ШЛЯХУ ДО КОНЦЕПТУАЛІЗАЦІЇ ПОНЯТТЯ
Abstract
Стаття присвячена дослідженню проблематики концептуалізації поняття покарання у міжнародному кримінальному праві та віднаходженню викликів, які наразі існують на шляху до відповідного результату. Визначено роль та місце феномену «міжнародного злочину» в означеному процесі, як такого, який не тільки пронизує переважну більшість аспектів міжнародного кримінального права, а й одночасно знаходиться в тісному взаємозв’язку із «покаранням», суттєво впливаючи на нього, видозмінюючи його внутрішні змістовні характеристики й параметри. Виявлено та систематизовано дві групи сучасних викликів на шляху до концептуалізації покарання у міжнародному кримінальному праві, серед яких чільне місце, з одного боку посідає проблематика «авторитету» та «легітимності» міжнародного кримінального права, «легальності» й «легітимації» міжнародних кримінальних судів і трибуналів, а також «законності» покарання у міжнародному кримінальному праві («зовнішні виклики»), а з іншого – широке коло проблем, пов’язаних із визначенням покарання, його мети, цілей, структури системи покарань, конкретних їх видів, а також інших специфічних нюансів, зосереджених довкола цієї категорії («внутрішні виклики»). Наголошено на перспективності досліджуємої тематики і обґрунтовано доцільність подальшої її наукової розробки з огляду на виявлені тенденції, що формуються («похідний характер», «селективність», «конфронтація»).
Insufficient development of International Criminal Law, as well as its development under the influence of different legal systems, brought forth the lack of clear definitions of certain criminal law concepts and institutes. When considering the goals of International Criminal Law in theory they are often confused with the goals of International Criminal Justice, but also with the purpose of punishment in International Criminal Law. In that sense, the aim of the paper is, first of all, to analyse theoretical understandings of the goals of International Criminal Law and Justice, as well as their definition in the acts within the field of International Criminal Law, in order to provide for the possible manner of defining and delimiting these terms. Further, the aim of the paper is to distinguish from these terms the purpose of punishment in International Criminal Law.
Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.
Modern international tribunals have developed a presumption of unconditional early release after prisoners serve two thirds of their sentences, which decreases transparency and is generally out of line with the goals of international criminal law. I trace the development of this doctrine to a false analogy with the law of domestic parole. I then suggest an alternative approach based on prisoners' changed circumstances and enumerate criteria for tribunals to use in future early release decisions.
Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the indeterminate federal sentencing system criticized by Judge Marvin E. Frankel in his famous polemic, Criminal Sentences: Law Without Order (1973). This Article analyzes the extent to which the conventional goals of punishment in national law can or should be transposed to the distinct legal, moral, and institutional context of ICL. It argues that the expressive capacity of punishment best captures both the nature of international sentencing and its realistic institutional capacity to make a difference in view of the legal, political, and resource constraints that will continue, for the foreseeable future, to afflict ICL. The transposition to ICL of the standard justifications for punishment in national law proves deeply problematic in large part because ICL attempts to combine the paradigms of two very different legal fields: (i) classical international law - a profoundly consensual body of law based on broadly shareable norms among states; and (ii) national criminal law - a profoundly coercive body of law often understood to embody the most fundamental, particularistic norms and values of a local polity. ICL therefore differs from national criminal law in several respects relevant to the social institution of punishment, including the nature of (i) the community that authorizes ICL, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. These differences tend to compromise the coherence or efficacy (or both) of conventional crime-control and retributive justifications for punishment. Insofar as these justifications or penal goals remain plausible, it is largely because of the expressive dimensions of punishment. ICL's ability to contribute to the lofty objectives ascribed to it depends far more on enhancing its value as authoritative expression than on ill-fated efforts to identify "appropriate" punishments for crimes that strain our moral intuitions. For this reason, I urge, among other potential developments in the law and practice of sentencing by international criminal tribunals: (i) the institution of sentencing hearings as an essential component of ICL; (ii) greater attention to social, psychological, and political context and the role of the defendant vis-a-vis collective entities (states, armies, and so forth) as aggravating or mitigating factors; and (iii) a focus on enhancing jurisprudential exchange between national and international criminal justice institutions.
This book is one of the most influential textbooks in the field of international criminal justice. It offers a systematic and comprehensive analysis of the foundations and general principles of substantive international criminal law, including thorough discussion of its core crimes. It provides a detailed understanding of the general principles, sources, and evolution of international criminal law, demonstrating how it has developed, and how its application has changed. After establishing the general principles, the book assesses the four key international crimes as defined by the statute of the International Criminal Court: genocide, crimes against humanity, war crimes, and the crime of aggression. This new edition revises and updates the work with developments in international criminal justice since 2014. The book retains its systematic approach and consistent methodology, making it essential reading for both students and scholars of international criminal law, as well as for practitioners and judges working in the field.
Why Punish Perpetrators of Mass Atrocities? - edited by Florian Jeßberger February 2020
This book deals with the prosecution of core crimes and constitutes the first comprehensive analysis of the horizontal and vertical systems of enforcement of international criminal law and of their inter-relationship. It provides a global jurisprudential exposition in assessing the grounds for refusal of surrender to the International Criminal Court and of extradition to another State. It also offers insights into legal perspectives which improve the prevailing enforcement regimes of various models of criminal justice, including hybrid criminal tribunals, special criminal courts, judicial panels and partnerships, and other budding sui generis judicial and/or prosecutorial institutions.
The book espouses a human rights law-oriented critique to the enforcement of domestic, regional and international criminal justice and is aimed at legal practitioners (prosecutors, defence lawyers, magistrates and judges), jurists, criminal justice experts, penologists, legal researchers, human rights activists and law students.
Christopher Soler lectures Maltese criminal law, international criminal law and public international law at the University of Malta. He obtained his Ph.D. from the University of Amsterdam in The Netherlands.
One purpose of this book is to investigate and evaluate the process of international sentencing, especially as interpreted by the ICTY and the ICTR, and to suggest a more comprehensive and coherent system of guiding principles, to foster the development of a law of sentencing for international criminal justice.
The book discusses the law and jurisprudence of the ad hoc Tribunals, and also presents an empirical analysis of influential factors and other data from ICTY and ICTR sentencing practice, thus offering quantitative support for the doctrinal analysis.
This publication is one of the first to be entirely devoted to the process of sentencing in international criminal justice.
This article examines the position of the death penalty under international criminal law. It traces the evolution in thinking in terms of sentencing practices — from the inclusion (and implementation) of the death penalty in the Nuremberg and Tokyo War Crimes Tribunal statutes, to the modern day international criminal tribunals and courts, which are not mandated to impose the death penalty. This is considered within the broader context of the ‘internationalisation of justice’, which has emerged since the beginning of the 1990s. The article analyses the reasons for this evolution in sentencing, which include changes in human rights standards and societal values, and the developing rationales of international criminal justice, as well as more practical (resource-driven) considerations. The article also considers the implications of the various strategies implemented by a number of the international criminal tribunals to remit cases to national courts in appropriate circumstances, and how this may be contributing to the strong momentum towards abolition of the death penalty at the national level.
In light of the global trend towards the abolition of the death penalty and the stand of the United Nations on the matter, it is not surprising that the maximum penalty available under international criminal law is life imprisonment. However, during the negotiations for the penal aspects of the Rome Statute, some delegates contended that life imprisonment is a violation of human rights such as human dignity and the prohibition against cruel, inhuman and degrading treatment or punishment. On the other hand, some delegates felt that excluding life imprisonment from the International Criminal Court's competence where the death penalty was not available would handicap its mandate to punish gross human rights violators. Adopting a human rights perspective, the article revisits this debate by critically examining the penalty of life imprisonment under international criminal law. It argues that no clear justification has been given for the imposition of life imprisonment and that the release mechanism for lifers needs to be improved. Focusing on the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court, the article analyses the relevant statutes and rules and the manner in which life imprisonment has been imposed by these tribunals. Further consideration is given to the enforcement of sentences with respect to the prospect of release for 'lifers'. The article concludes by stressing the need for a more focused and cautious approach to life imprisonment and the enforcement of sentences under international criminal law.
The question "what is an international crime?" has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime. Some disagreement exists concerning the first issue, particularly with regard to torture and terrorism. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue, insisting that an act qualifies as an international crime if- and only if-that act is universally criminal under international law. This definition of an international crime leads to an obvious question: how exactly does an act become universally criminal under international law? One answer, the "direct criminalization thesis" (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Another answer, the "national criminalization thesis" (NCT), rejects the idea that international law directly criminalizes particular acts. According to the NCT, certain acts are universally criminal because international law obligates every state in the world to criminalize them. This Article argues that if we take positivism seriously, as every international criminal tribunal since Nuremberg has insisted we must, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal.
This 2005 book discusses the legitimacy of the international criminal law regime. It explains the development of the system of international criminal law enforcement in historical context, from antiquity through the Nuremberg and Tokyo Trials, to modern-day prosecutions of atrocities in the former Yugoslavia, Rwanda and Sierra Leone. The modern regime of prosecution of international crimes is evaluated with regard to international relations theory. The book then subjects that regime to critique on the basis of legitimacy and the rule of law, in particular selective enforcement, not only in relation to who is prosecuted, but also the definitions of crimes and principles of liability used when people are prosecuted. It concludes that although selective enforcement is not as powerful as a critique of international criminal law as it was previously, the creation of the International Criminal Court may also have narrowed the substantive rules of international criminal law.
This chapter examines the evolution of international criminal justice, from the earliest known tribunal to the International Criminal Court. It traces arguments supporting and criticizing these tribunals, from both legality and legitimacy perspectives, and explores the implications for the relationship between the two concepts. The Nuremberg and Tokyo trials are seen as a strong example of legitimacy trumping legality, forcing international law to address the gaps they highlighted. The trials were exceptional, unprecedented measures, which were nevertheless seen as preferable to the two alternatives of amnesty or extrajudicial executions. They suffered from numerous legality failings related to their establishment and fundamental flaws in legal procedure, while their legitimacy was also lacking in terms of impartiality, objectivity, and hypocrisy. But despite these shortcomings, they gradually gained widespread legitimacy by contributing to sustained peace in Germany and Japan and implementing the concept of individual criminal accountability in international law.
This book examines the rapid development of the fundamental concept of a crime in international criminal law from a comparative law perspective. In this context, particular thought has been given to the catalyzing impact of the criminal law theory that has developed in major world legal systems upon the crystallization of the substantive part of international criminal law. This study offers a critical overview of international and domestic jurisprudence with regard to the construal of the concept of a crime (actus reus, mens rea, defences, modes of liability) and exposes roots of confusion in international criminal law through a comprehensive comparative analysis of substantive criminal laws in selected legal jurisdictions. © Springer-Verlag Berlin Heidelberg 2014. All rights are reserved.
There are both gaps and weaknesses in the various sources of International Criminal Law in norms and enforcement modalities. A comprehensive international codification would solve these problems, but this is not forthcoming.
Writing 62 years ago, Georg Schwarzenberger posited that international criminal law did not exist. As long as some States, those larger or more powerful, were held to a different standard, or, in fact, not held to account at all, it was premature to speak of such a thing. For Schwarzenberger, international criminal law was a misnomer without universal criminal justice. This article considers whether that same criticism can be made of international criminal law today. Indeed, it asks whether this is a realistic expectation in the first place. The recently concluded Review Conference of the International Criminal Court in Kampala, Uganda is seen as an ideal juncture at which to do so. This article analyses what is meant by the term international criminal law and then selects two models; the International Criminal Court and the exercise of universal jurisdiction, to gauge the success, or failure, of international criminal law in satisfying Schwarzenberger's criterion.
This article focuses on the problems of, and prospects for, the enforcement of international humanitarian law through the
prosecution and punishment of Individuals accused of violations of International humanitarian law by international or national
tribunals. The author first examines the factors that historically prevented the development of International tribunals and
then looks at recent events, namely the end of the Cold War and the subsequent unleashing of unparalleled forces of nationalism
and fundamentalism in different parts of the world, which have created an increased willingness on the part of states to Institute
mechanisms, both at the International and domestic levels, for international criminal justice. With the establishment of the
ad hoc International Criminal Trubunals for the former Yugoslavia and for Rwanda, the enforcement of International humanitarian
law has moved into a new and more effective phase. Yet, the clear merits of individual criminal prosecution by international
tribunals cannot simply override the very real problems and obstacles they face. The author examines these problems, arguing
that state sovereignty is a major obstacle to the effective enforcement of International criminal Justice. Nevertheless, the
author concludes that justice can be done at the international level and that international criminal tribunals are vital in
the struggle to uphold the rule of law.
An issue has recently arisen in international criminal law concerning the gravity of the offences listed in the Statutes of the International Tribunals: Should offences be ranked according to their seriousness and, hence, as entailing heavier or lighter punishment? Should the same act when charged as a crime against humanity or genocide be punished more severely than when charged as a war crime?
It was understood from the outset that the trials would be limited, in accordance with the Moscow Declaration, to a number of the highest-ranking Nazi leaders and their principal accomplices. It was proposed by the United States in the draft of April 30, 1945, presented to the Foreign Ministers of France, Great Britain and the Soviet Union, that the trial comprise also “the principal Nazi organizations and their members, through whom the most bestial of the Nazi cruelties have been put into effect”. According to this draft, the defense of superior orders shall not absolve the accused from responsibility but may be considered, if justice so requires, in mitigation of punishment. Nor shall an accused be able to escape the trial on the ground that he was the head or principal officer of a state. Offenses against the armies of the United Nations would be punished by the appropriate national tribunals. Perpetrators of atrocities in territories occupied by Germany during the war as well as traitors such as Quisling, Laval, “Lord Haw-Haw”, would be dealt with in a similar manner.
In "Atrocity, Punishment, and International Law," Mark Drumbl rethinks how perpetrators of atrocity crimes should be punished. After first reviewing the sentencing practices of courts and tribunals that censure genocide, crimes against humanity, and war crimes, he concludes that these practices fall short of the goals that international criminal law ascribes to punishment, in particular retribution and deterrence. This raises the question whether international prosecutorial and correctional preferences are as effective as we hope. Drumbl argues that the pursuit of accountability for extraordinary atrocity crimes should not uncritically adopt the methods and assumptions of ordinary liberal criminal law. He calls for fresh thinking to confront the collective nature of mass atrocity and the disturbing reality that individual membership in group-based killings is often not maladaptive or deviant behavior but, rather, adaptive or conformist behavior. This book deploys a bold, and adventurously pluralist, interpretation of classical notions of cosmopolitanism to advance the frame of international criminal law to a broader construction of atrocity law and a more meaningful understanding of justice. Drumbl concludes by offering concrete reforms. He urges contextual responses to atrocity that welcome bottom-up perspectives, including restorative, reparative, and reintegrative traditions that may differ from the adversarial Western criminal trial.
This paper investigates the legitimacy of international criminal trials and defends them against objections grounded in the principle of legality. The argument begins with the observation that the center of gravity in international criminal tribunals lies in the trials themselves more than the punishments inflicted. Such often-discussed aims as giving victims a voice or creating a historical record of mass atrocities are goals of the trial process, not the punishment. Often, it is the spectacle of a former leader brought before a court for politically-motivated atrocities that captures the public imagination; the trial itself has a theatrical or didactic component. That is not an objection to the trials, if they are conducted fairly. But the use of the trial as political theater puts pressure on its fairness. This paper argues that the aim of the trials is norm projection: trials are expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not merely politics by other means. The trials are meant to project the message that atrocities are crimes, not political deeds that exist “beyond good and evil,” a vision that underlies traditional amoralist concepts of raison d’état or Kriegsraison.The second principal thesis of the paper is that the legitimacy of the tribunals comes from the fairness of their procedures and punishments, not their political pedigree. The legal and political arguments for the jurisdictional authority of international bodies to establish tribunals are only partly satisfactory, and insufficient on their own to legitimize the tribunals. Tribunals bootstrap themselves into legitimacy by the quality of justice they deliver; their rightness depends on their fairness. The clearest example is the Nuremberg Tribunal. Established by victorious allies with jurisdiction only over the Axis powers, it had to prove that it was no show trial, and the clearest evidence was the acquittals it produced.The final sections of the paper address the concern that international tribunals characteristically violate the principle of legality, in two ways: they are generally established only after the crimes they try are committed, and they sometimes read the law broadly, from a victim-centered point of view, rather than narrowly, as the legality-based rule of lenity in criminal law would require. The paper argues that the two motivating arguments behind the principle of legality – concern about fair notice, and concern about despotic abuse of the power to punish – are less compelling in international criminal law than they are in domestic law. As for the fair-notice rationale: the more horrendous the deeds, the less fairness requires formal notice of potential criminal liability. As for the government abuse rationale: : there is simply much less danger of government abuse in international criminal law than in domestic legal systems, because ICL arises from weak, decentralized institutions rather than strong, concentrated ones. Skeptics point to the free-floating, cosmopolitan character of the tribunals in order to attack their legitimacy. But exactly the same facts demonstrate that the worry about abuses of the legal process by holders of state power is not a powerful one.
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