International Criminal Law

International Criminal Law

  • John MM Rumbold added an answer:
    Is mental illness a valid defense to a war crime or crime against humanity? Specifically, is inability to recognize right from wrong a valid defense?

    If Adolph Hitler had presented evidence proving he was suffering from a mental illness that prevented him from knowing the difference between right and wrong at the times of the alleged violations of international war conventions and customs of war, could he have been found not guilty by reason of insanity? If so, what would the consequences be or what should they be?

    John MM Rumbold

    I have to say I think the current basis for the international criminal court is quite dubious, and war crimes still tend to be victors justice by and large. I sympathise with the notion that trying to "civilize" war is a fool's quest.

  • Goran Šimić added an answer:
    Are there benefits of the application of international criminal justice in post war countries?

    Are there any empirical evidence that International criminal justice (ICJ) do help post war countries?

    In post war countries where usually corruption is rife and  majority of the population live below the poverty line, can ICJ be of priority for the population or more a means of setting international precedent? 

    Also if it can be argued that ICJ is important for post war countries, how can it be applied so that the affected people can feel a part of the process considering the ICC for example which hearings and procedures are held thousands of miles away from where the crimes being tried occurred.

    Any answers or articles on these topics will be highly appreciated

    Goran Šimić

    Although the establishment of the International Criminal Tribunal for former Yugoslavia (ICTY) has allowed bringing before the courts those responsible of war crimes, the tribunal has failed to address the most important issue for the future of the countries in region: truth, justice and reparation for all victims.

    The direct victims of a crime are not the only victims in a conflict. In the former Yugoslavia, particularly in Bosnia and Herzegovina, we are all victims. The war ended two decades ago, but the past hinders our future and shackles us.

    In 1993 the UN established the International Criminal Tribunal for the former Yugoslavia (ICTY), a court of law dealing with war crimes committed during the Balkans war in the 1990s. But to what extent has the ICTY helped Bosnia and Herzegovina come to terms with its history?

    I do not think the ICTY is a perfect tribunal and that everything they have done has been positive. That is not to say that I think the world would be a better place without it either. If the tribunal had not been established, it would be very difficult for us to face our past and to see all the political, military, and civilian leaders brought before the court to face responsibility for their actions.

    It is important to bear in mind that the ICTY started from scratch. As Carla del Ponte, the former chief prosecutor for the ICTY, says it is a tribunal which many wanted never to come into existence. Also, it must be acknowledged that it has laid the foundations for the establishment of other courts and tribunals by setting a precedent in international humanitarian law.

    Bosnia and Herzegovina, just like any other country in the world where people are suffering similar or worse situations, needs courts. Yet, the work of the ICTY over the past 20 years shows that courts alone are not sufficient because they do not provide victims with redress and reparation. Trials will not build memorial monuments and courts will not identify every victim. The ICTY deal with every case brought to it, but not with all potential cases. The courts are not set to establish the truth or give „justice“ but rather just to determine the criminal liability of an individual.

    Another important issue is regarding the efficacy of the punitive policies. A prison sentence alone is an inadequate sanction for someone who has killed whole families, raped women and taken part in atrocities. Increasing jail terms, though, would not achieve much. Regardless of the length of the jail sentence, it will feel inadequate if the victim is left unrecognized. So if we really wish to come closer to “just” punishment, we need to come up with something else
    that will respect victims in much more sense that imprisonment will ever do.

    One of the main shortcomings of the ICTY and the national courts is that victims are marginalized. War crimes are recognized as such because of the victims, who discuss what, happened and who are to be held responsible. Yet, majority of court work refer to the perpetrator and their rights instead of those of the victim. The defendant has the right to the presumption of innocence, to a fair trial, to defense, to communication, etc.

    Victims though are mentioned only in terms of property claims. But how many property claims have been brought to a conclusion and led to an actual redress? The focus should be on the victims, because the victims and their suffering are the reason why we have war crimes trials.

    Without truth and justice for all victims, we will see no progress. But how can truth be established? Over the past ten to fifteen years, it has become quite clear that trials are insufficient. Although they help determine part of the truth and identify perpetrators and victims, trials do not lead to things such as reparation, institutional reforms, vetting of officials, school lessons, history books, and rehabilitation of the victims.

    I hope that we all will in future recognize the importance of other mechanisms and activities that deal with the past, often referred to as transitional justice. All victims, regardless of their ethnicity and religion, need to find satisfaction, redress, and reparation for what they have suffered. Without that, their future is uncertain.

    I do not think that it is possible to guarantee real justice in this world. A grieving mother or people who suffered in detention camps cannot be adequately compensated for their loss and suffering. Yet, the ICTY has done its share of work. If we did not have this imperfect mechanism, then all those who commit the crimes would gloat over their victims.

    But now we need to move forward. In the future the UN and all those who establish courts elsewhere should critically look at ICTY’s work, taking what is best but addressing its faults.

    Having that in mind, we have to accept fact that courts are not magic sticks that will solve all problems in post conflict societies, rather one of the factors for better future without war crimes and suffering that need to work in synergy with all others. Only in that way, “justice”, that word that we use to easily, will be justice without quotes for victims and society.

  • Jill Cottrell added an answer:
    Is anybody aware of high quality studies on how developing countries can recover some of the money stolen by their corrupt dictators?

    In my research I have found plenty of literature on the causes and consequences of corruption and kleptocratic regimes. However, there is painfully little advice available for countries trying to recover the billions stolen by their dictators, for example Egypt trying to trace and recover money stolen by the Mubarak family, Indonesia with Suharto, Nigeria with Sani Abacha, etc. In the latter case, Swiss banks have now apparently offered to return $380 million of Nigeria's money, which sounds good but is really only a cheap PR stunt given that Abacha stole at least 2 and probably closer to 5 billion dollars from his country.

    Jill Cottrell

    You might be interested in Corruption and human rights law in Africa, by Kolawole Olaniyan (Oxford and Portland, Oregon: Hart Publishing, 2014). It is available as an ebook.

  • Steve Russell added an answer:
    What are the benefits of ratifying the International Criminal Court?

    while ratifying ICC statute the questions like sovereignty, its effective implementation arises, so why should country ratify it or why should not?

    Steve Russell

    The benefit is exactly the same as the benefit to having trials at Nuremberg rather than just hanging everybody the victors wished to hang as a privilege of winning the war, as both Mr. Stalin and Mr. Churchill advocated and history taught would not be completely out of line.

    This is a case where my political adhesion to a "sovereign" Indian nation confers an advantage.

    That is, I understand how waving the bloody red shirt of sovereignty can cover a multitude of sins.

    I understand that sovereignty as understood in the modern world is a remnant of the personhood of the sovereign, the king or queen, and as such it has attributes that might not exist if the world had conferred at Westphalia to design the new order in a broader sense.

    I understand that what might be termed a bureaucratic view of sovereignty was novel in the sweep of history at the time Europe invaded the Americas, a novelty that has since demonstrated it has drawbacks.

    Impunity for evil acts is not a good thing.  The Rome Statute purports to cabin the authority of the ICC by specifying a few especially inhuman acts that can have repercussions far beyond any national borders.  But the fact is that ending the impunity is a limitation of Westphalian sovereignty.

    Does anybody prattle about the "sovereignty" of Rwanda when they regret the genocide?  Intervention, if it's ever "excused," can be excused by claiming that order had broken down such that it needed restoration from outside the nation.  But even recognizing the excuse invites trumped up interventions.  Why not subject interventions to law?  

    Law has a track record better than other forms of politics of giving the powerless some hope when confronted by the interests of the powerful.

    I think that, when history judges whether the Rome Statute is a harbinger or a dead end, the answer will turn more on the procedure than the substance.  We can agree on substantive limitations on national sovereignty if we can ditch the folklore, but the devil is in the details, and the details are procedural.

    The question is not whether the Rome Statute is a limitation on sovereignty.  Of course it is.

    The questions re the upside of adhering to the procedures of the ICC are exactly the same as for any rule of law on any level.  Can we agree that we should not have an understanding of sovereignty that enables this behavior?  Are the procedures to determine whether the behavior in fact took place fair?

    The difference is the power imbalance among nations and that difference and how to finesse it is the central political problem.

  • Stefan Gruner added an answer:
    Are unproven unscientific theories accepted in court?

    Many miscarriage of justice cases have occurred because experts give their expert opinions based on theories which lack sound scientific foundations.  Some theories gain acceptance based on very little verification and even remain in use despite being shown to be unsound. 

    An example is Shaken Baby Syndrome, where despite the basis of the theory being falsified in that the triad of injuries upon which the theory relies being found in natural deaths where no abuse or non accidental injury has occurred, the theory remains deployed. 

    Similarly Münchausen Syndrome by Proxy has been deployed and, despite judicial recognition of its poor scientific foundations, and in consequence of it, the theory has been renamed.  It was redeployed initially as 'Factitious Illness by Proxy' ('FIBP') and later "Fabricated or Induced Illness" ("FII") appears to have taken over.

    + 2 more attachments

    Stefan Gruner

    Related work by Martin Olivier: follow the link given below.


  • Joaquín Sarrión added an answer:
    Prisons housing inmates sentenced by the ICTY, ICTR and SCSL
    Me and a group of researchers from the Vrije Universiteit Amsterdam are conducting research on the level of custody and the range of services provided to prisoners who have been sentenced by the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL). Inmates sentenced by these courts are serving their sentences in a variety of countries that have participating agreements with the tribunals. At present, there are ICTY, ICTR and SCSL inmates spread around 14 European countries (Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Spain, Sweden and UK) and 4 African countries (Benin, Mali, Rwanda and Tanzania).

    I would appreciate any information you have regarding:
    - correction system in any of these countries
    - individual prisons where these inmates are housed
    - the level of security and custody provided, and
    - any information about the daily routine they experience, including recreational, educational, and other rehabilitation services
    Joaquín Sarrión

    Dear Patricia, 

    I would be very happy to assist and help to your research regarding Spain, if it is actually active. Let me know too. Regards

  • Bruno Dias added an answer:
    Has individual accountability, particularly after the trial of Charles Taylor, become an inviolable norm of international law?
    The Nuremberg Trials set the tone for the evolution of a host of norms that eventually found their reflection in the Rome Statute. With over 122 Ratifications, the Rome Statute has come to be a guiding light on its own merit casting its luminance on those functions of sovereigns that hitherto were protected from 'public scrutiny'. There are serious debates as to whether by subscribing to the ICC nations are forsaking their sovereignty. The number of ratifications however are reflective of the emergence of a consensus amongst nations that no regime must violate individual right to life and dignity in the name of sovereign impregnability. Charles Taylor's conviction seems to suggest that the consensus is not merely a vote for morality. Or, is it?
    Bruno Dias
    Good Morning Srinivasan,

    Agreed. And let's carry on the debate so we can keep the flame in academic fora and incite it to the political level.

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