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The 2020 Brill Online Journal Collection International Law & Human Rights gives access to the online content available back to the year 2000 of Brill´s 2020 International Law & Human Rights journal program.

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Harmen van der Wilt

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

Michelle Coleman

This article explores where participation rights of victims and the presumption of innocence come into conflict within the context of the International Criminal Court (icc) and whether this causes either set of rights to be violated. First it discusses the development of the right to the presumption of innocence at the icc and explains victims’ participation rights. Next it outlines how conflict between these two rights should be resolved. The article then examines three areas in which there is tension between victims’ participation and the presumption of innocence. These areas are: calling victims ‘victims’; evidence submission; and participation by questioning witnesses. Finally, the article concludes that the rights of victims and the accused can come into conflict and that in order to ensure that the right to the presumption of innocence is protected, and to provide victims with a meaningful right to participation, victims’ rights must be more clearly defined.

Michelle Lokot

Rape during conflict is often over-simplified and sensationalised in the accounts of international humanitarian agencies. This article suggests that such narratives on rape are connected to the way international tribunals and courts have narrowly framed the crime of rape. Limited legal constructions of rape reinforce a hierarchy where rape is seen as more worthy of protection than other forms of gender-based violence – a hierarchy that international humanitarian agencies perpetuate through their narratives on rape during conflict. Based on ethnographic accounts from Syrian women and men, this article draws attention to the problematic consequences of focusing on sensational narratives. It aims to reposition rape – and gender-based violence more broadly – within unequal power structures and a wider system of women’s subordination. It argues that while less incendiary, other kinds of gender-based violence during conflict may be just as insidious as rape.

Elena Butti and Brianne McGonigle Leyh

The town of San Carlos, highly affected by the Colombian conflict, is often presented as an example of a successful domestic reparations process. Yet not all victims agree with this assessment. A significant number of marginalised adolescents feel that their voices and realities are not reflected in the reparations programme provided by the 2011 Victims’ Law. While the programme promises to transform lives, it does little to change the lives of young people at the margins. This article compares and contrasts the legal framework on reparations for underaged victims with insights drawn from ethnographic research with these youths. The situation of these young people signals that transformative reparations are not working as they should. We argue that this failure is due to the mismatch between the conceptualisation of ‘vulnerable child-victims’ in the text of the law and these youths’ nuanced identities. Using intersectionality, we propose an alternative way forward.

Jaymelee Kim and Tricia Redeker Hepner

In the aftermath of war, survivors’ definitions of justice are often in tension with those of governments and international actors. While post-war northern Uganda has been the site of high-profile prosecutions of Lord’s Resistance Army rebels, our research in rural Acholiland highlights how survivors define justice largely in terms of material compensation for both the living and the dead. These priorities are linked to the omnipresence of improperly buried human remains as evidence of physical and structural violence. Mass graves, burials in former displacement camps, and unidentified remains become focal points around which survivors articulate ongoing socioeconomic suffering and demands for redress. A ‘thanatological approach’ that centres the role of the dead and critically explores the possibilities presented by forensic science in a transitional justice context reveals survivors’ prioritisation of reparative and restorative justice despite the international and national focus on retributive justice through institutions like the icc.

Alicia de la Cour Venning

Although armed opposition actors are increasingly prevalent within contemporary conflicts, ethnographies seeking to understand and explain their relationship with international law are scarce. While scholars highlight the state-centric nature of international law, discussing at length how it privileges state over non-state actors, few examine the way rebels perceive and relate to the international legal system. Drawing on seven months of field research among Kachin civil society and the Kachin Independence Organisation / Army (kio/A), this article demonstrates how the kio/A’s nascent engagement with international law is being strategically pursued as part of a broader rebel governance project. Ethnographic research exposes the oft neglected rebel perspective. It reveals how rebels interact with international humanitarian norms as a means to facilitate and mediate relations with both local and international actors, in an attempt to promote nation building aspirations and thereby strengthen resistance to state violence.

Noura Erakat

In the Gaza Strip, Israel’s military used lethal force against civilian protestors engaged in the ‘Great Return March’ of 2018. In its late May 2018 ruling, the Israeli Supreme Court held this use of force as legitimate self-defense. This article challenges Israel’s security response to these protests in an attempt to both unsettle a warfare discourse and to urge for a distinct ontological approach. The article argues that an ongoing settler-colonial project has racialised the Palestinian body as a security threat, and historicises Israel’s shoot-to-kill policy as merely one contemporary mode of dispossessing the native body. This includes a novel framework of armed conflict that has diminished the category of the civilian and expanded the scope of legitimate targets permitting the killing of greater numbers of Palestinians in the language of law; the article calls this legal technology the ‘shrinking civilian’.

Anja Matwijkiw

When responses to international crimes are managed in terms of post-conflict justice, this event may end ‘the demarcation debate’ before it has begun, thereby rendering it superfluous among legal scholars. This is to say that the transition from theory to reality arguably has the effect of cancelling any sharp distinction between international criminal law, international human rights law and international humanitarian law, as well as extending international criminal justice into the moral territory. Certainly, this is a premise for the dual-aspect defense of those rights that help to explain the non-separation. However, to the extent that the defense discords with traditional assumptions, relevant aspects of pro-separation reasoning must be considered. These are accommodated under the triple-thesis whereby the unequal status of different (rights-)categories limit norm-integration. The author’s account of the competing programs shows a series of flaws in the case of the triple-thesis doctrine, amounting to a vicious circle ‘argument’.