Browse results

You are looking at 1 - 10 of 115 items for :

  • International Criminal Law x
  • Upcoming Publications x
  • Just Published x
  • Access: Open Access x
  • Search level: All x
Clear All

Abstract

Recently municipal courts have found that foreign states do not enjoy jurisdictional immunity with respect to civil claims involving serious violations of international law within the forum state’s territory during armed conflict. This article assesses the recent judgments’ potential impact, taking into account previous court practice and international human rights jurisprudence. It concludes that an exception to immunity in the above circumstances where no alternative judicial remedies exist for the victims has a basis in previous practice and may be required to give effect to international human rights obligations. A recognition by the foreign state of an individual victims’ right to bring a claim before that state’s courts could provide the victims with reparation in the form of satisfaction. Where no such possibility exists, a limited exception to the rule of state immunity would ensure the victims’ right to access to court and to the truth.

Open Access
In: International Criminal Law Review
Author:

Abstract

When criminal law became one of the components of the Union’s objectives, the EU obtained explicit substantive criminal law competences. Minimum rules on substantive criminal law facilitate the principle of mutual recognition, allow for the approximation of sanctions and common definitions of certain offences, and make it possible to respond to global challenges. Criminal law could also have serious consequences for the persons involved. The EU legislator should therefore exercise caution when exercising its competences to approximate the substantive criminal law of its Member States. Criminalisation principles offer the legislator an argumentative framework, which can be used to determine whether criminalisation is legitimate and justified. This article aims to introduce a set of uniform set of criminalisation principles at the EU level.

Open Access
In: European Journal of Crime, Criminal Law and Criminal Justice

Abstract

The defence of mental incapacity raises unique challenges in the particular context of mass atrocity and international criminal law. Yet, it has remained largely unexplored in the jurisprudence of international courts and tribunals. The Trial Chamber judgment issued by the International Criminal Court in the case of Dominic Ongwen offered a unique opportunity to remedy this and clarify the legal contours of the defence. Unfortunately, the court engaged minimally with these issues. This article examines the court’s reasoning in the Ongwen case and the lessons that may be learnt from it about the operation of the defence, particularly in relation to the treatment of expert evidence. It is contended that while there were significant shortcomings in the claim put forward by Ongwen in the aftermath of the judgment, the prospects of advancing a successful defence of mental incapacity based on control-related disorders in the future appear limited.

Open Access
In: International Criminal Law Review

Abstract

Despite international guidelines, it is common practice in many European countries for prisoners to share a cell. In many cases this may be a measure to cope with overcrowding, but in the Netherlands it is a policy measure to reduce costs and flexibly adjust capacity. While the harms of overcrowding are widely recognised, less is known about the effects of cell sharing in non-overcrowded conditions. This study considers the association between cell sharing, wellbeing, misconduct, and prison climate, using data from a national survey study among Dutch prisoners (N = 3408). Findings show that cell sharing is associated with poorer ratings of wellbeing and prison climate, especially for people who prefer a single cell. Prisoners in double cells who do not get along with their cellmate report more misconduct. These findings reinforce recommendations to house people in single cells, unless they prefer otherwise.

Open Access
In: European Journal of Crime, Criminal Law and Criminal Justice

Abstract

Limited research has been devoted to factors impacting the perceived justness of sentences for international crimes. We presented respondents with a vignette in which such a hypothetical crime was described, as well as some contextual information; in the vignette, the perpetrator received a sentence that was based on similar historical cases. In the study, the rank of the perpetrator, the apology by the perpetrator, and the location of the trial (in the country where the crime was committed or at the International Criminal Court) were manipulated. Respondents were asked whether they believed the sentence was just or whether they would hand down a different sentence. Qualitative questions were included to elucidate respondents’ choices. Our mixed methods analyses reveal how apology, over and above strong geographic differences, plays a significant and dominant role in perceived justness.

Open Access
In: International Criminal Law Review

Abstract

The icc has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and icc judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.

Open Access
In: International Criminal Law Review
Author:

Abstract

Before and during the Second World War, Japan established a legalised system of sexual slavery, in which approximately up to 200 000 women, euphemistically known as ‘comfort women’, were exploited. Although the victims came from all the regions of the Japanese Empire, the majority of them were Korean. While initial reconciliation attempts were met with refusal, a seemingly positive step was taken in December 2015, when South Korea and Japan announced that they had reached an agreement which would ‘finally and irreversibly’ resolve this issue. The main argument developed throughout the present article is that the agreement does not do justice in addressing the victims’ needs and rights in many ways, with the need for acknowledgement and memorialisation being primarily neglected. A critical evaluation of the 2015 agreement is particularly important in light of its suspension due to the dissolution of the Reconciliation and Healing Foundation.

Open Access
In: International Criminal Law Review
Author:

Abstract

Although the war in Bosnia and Herzegovina ended a quarter of a century ago, a large number of war crimes suspects are still being prosecuted. One of the visible issues arising in domestic courts are aged defendants, whose trials are delayed due to old age and illness. The aim of this article is to give an overview of case law and analyze the process of prosecuting aged defendants at the War Crimes Chamber within the Court of Bosnia and Herzegovina, which carries the largest workload of war crimes cases in the region. This article focuses on two main aspects: portrayal of these cases in the media and the legal reasoning of the court.

Open Access
In: International Criminal Law Review
Authors: and

Abstract

Although at least some of the concern with prosecuting aged defendants seems to lie with defendants not quite looking the part, reviews of historic Court buildings come out the other end with allusions to eminence, authenticity, tradition, history and gravitas. Exemplary is the Courtroom 600 Project, a vr experience of the Nuremberg Trials set in a virtual rendition of the Palace of Justice in Nuremberg. Courtroom 600 remains today one of the major material referents in the histories of international law, representing the symbolic birthplace of International Criminal Law. The attraction of the Court moreover is such that the building has come to offer, as we would say, a legal sightseeing point of interest. In this piece, we pick up on the Courtroom 600 Project as capitalising on the interest with visiting the place ‘where it happened’, and pushing the boundaries of experiencing ‘being there’, where it happened.

Open Access
In: International Criminal Law Review

Abstract

To this day, the trial of Pol Pot in July 1997 in Anlong Veng remains an underexplored topic, possibly because it is seen as a parody of justice organised by a rival Khmer Rouge faction. Images of the event show an old and fragile man who has to be supported by guards to the meeting hall. Drawing on anthropologist Ashley Thompson’s study of the ‘substitute body of the king’, the paper examines the corporeal strategies at play in the trial and in the display and cremation of Pol Pot’s body in April 1998. Using a range of materials (articles in media, pictures, videos, and artworks), it brings into conversation ‘forensic aesthetics’, performance theory, and contemporary visual arts to investigate the role of Pol Pot’s body as a political tool in the troubled context of post-transition Cambodia.

Open Access
In: International Criminal Law Review