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Abstract

This article envisages how one might conceptualize the ‘Grotian Style’ in international criminal justice as a practice of adaptation spearheaded by international judges rather than as actual changes occurring in the international system. It foregrounds the emblematic career of Antonio Cassese at the ICTY as epitomizing the trajectory of a scholar on the bench intent on seizing a historic opportunity to reframe the law. The contours, origins, and prospects but also limitations of the ‘Grotian style’ are then discussed. The problem with the Grotian style is not primarily that it runs roughshod over defense rights, but that it appropriates a law-making authority which, in the international system, is better understood as primarily vested in states. In the process, it risks exposing its hubris and shallowness, especially when deciding on normatively intractable issues. In a context where international criminal justice is increasingly being normalized, the time may have come to reconceptualize judges’ role along more global constitutional lines as rooted in an ongoing dialogue with the international community of states and an emerging separation of powers.

In: Grotiana
In: The Diversity of International Law
In: Contemporary Issues Facing the International Criminal Court

Little is known about what the icc’s reparation policy will turn out be, but this is already one of the most eagerly anticipated issues in international criminal justice. Much hinges on a just reparations policy, but the obstacles are formidable. Two of them stand out: the fact that those convicted will often have nothing like the resources that would be necessary to pay adequate reparations; and the fact that it is in the nature of international criminal justice’s selectivity that it may create significant distortions between different categories of victims. The argument offers two promising leads to develop a coherent reparations policy that makes sense of the limitations of awards ordered by the Court and of the Victim Trust Fund’s resources. These are on the one hand to diversify what is understood by reparations, and in particular by foreground collective and symbolic reparations, by opposition to individual and monetary ones; and on the other hand to contextualize reparations better and see Court awards and tfv initiatives as potentially part of a constellation of other reparatory initiatives that should be encouraged and coordinated with.

In: Contemporary Issues Facing the International Criminal Court

Abstract

This chapter is divided into four parts. The first part contrasts two extreme "historical types of international law" to show how the fortunes of international criminal justice are indistinguishable from the global legal order within which it operates. In the second part, an increasing awareness of the need to limit the excesses of sovereignty in the 20th century is shown to have prompted the emergence of an international community of states dedicated to the promotion of common societal values. In the third part, something more than the "success" of ad hoc tribunals is presented as necessary to make the "paradigmatic leap" to permanence, which implies forfeiting some crucial elements of the state system. Finally, the chapter argues that the adoption of the International Criminal Law (ICC) Statute, as such, does signal a return to a benign conception of sovereignty that is to be ultimately constrained by the exigencies of humanity.

In: International Humanitarian Law: Prospects

Abstract

Drawing on the work of Hillary Charlesworth, this chapter reflects on what it describes as the « crisis mode in international legal scholarship,” a way of doing research that is largely constrained by the exigencies of the moment to which international lawyers must attend urgently. COVID provides just such a crisis, one that reveals much about the nature of international legal scholarship. The question in this context is less “what can international law do to alleviate the COVID crisis?” but “what does the COVID crisis say about our modes of knowledge production?”

Open Access
In: Crisis Narratives in International Law

The overarching focus on the United Nations and its agents for human rights violations and abuses they may have committed, as well as the attention to troop contributing states and even ‘victims’, has broadly shifted attention away from the role of the host state in peace operation. This article seeks to unpack that omission and suggests that it is far more problematic than commonly thought, in particular because it tends to reproduce some of the problematic features of the political economy of peacekeeping that are the background of rights abuses in the first place. Instead, as part of a tradition of thinking of human rights in terms of sovereign protection, the article makes the case for taking much more seriously the role that the host state can and should have in order to address abuses by international organizations. It emphasises how international legal discourse has tended to ‘give up’ on the host state, but also how host states have themselves been problematically quiescent about violations occurring on their territory. This has forced victims to take the improbable route of seeking to hold the UN accountable directly, bereft of the sort of legal and political mediation which one would normally expect their sovereign to provide. The article contributes some thoughts as to why host states have not taken up their citizens’ cause more forcefully with the United Nations, including governmental weakness, a domestic culture of rights neglect, but also host state dependency on peace operations. The article then suggests some leads to rethink the role of the host state in such circumstances. It points out relevant avenues under international law as well as specifically under international human rights law, drawing on the literature developed to theorise the responsibilities of states in relation to private third-party non-state actors within their jurisdiction. It argues that there is no reason why the arguments developed with private actors, notably corporations, in mind could not be applied to public actors such as the UN. Finally, the article suggests some concrete ways in which the host state could more vigorously take up the cause of rights abuses against international organizations including by requiring the setting up of standing claims commissions or making more use of its consent to peace operations, as well as ways in which it could be forced to do so through domestic law recourses. The article concludes by suggesting that reinstating the host state within what should be its natural prerogatives will not only be a better way of dealing with UN abuses, but also more conducive to the goals of peacekeeping and state construction.

In: International Organizations Law Review

A considerable amount of literature exists on whether the Security Council’s actions towards the International Criminal Court (icc) as such are broadly consonant with the Rome Statute and the UN Charter. That literature, however, tends to treat the Security Council, and the United Nations with it, as a single bloc, and to judge the legality of its behaviour entirely independently from that of individual Security Council members in the Council. In revisiting these debates, this article examines the record of states in the Security Council in relation to the icc from the point of view of international law as a productive angle to understand how states reconcile various obligations of ‘good citizenship’ vis-à-vis international institutions.

In: International Criminal Law Review

A series of controversies that have structured the life of the International Criminal Court and which are often discussed separately can be traced to fundamental disagreements about the foundations of its authority. For some, the Court further crystalizes a sort of ius puniendi of the international community that is a direct continuation of the commitment to repress certain fundamental international crimes; for others, the key to the Court’s authority is, if anything, better understood as a function of sovereign delegation and agreement. The article explores the merits of these theories of both international criminal law and jurisdiction, both as theories and in light of the actual practices of international criminal justice. It may well be that an international ius puniendi can be said to exist in the abstract, and when it comes to core international crimes and the need to repress them. Even if the origin of some cardinal international criminal prohibitions is conventional, these prohibitions may have become so ingrained in the international legal order as to become inherent to it. But the public order and universal character of international crimes does not necessarily or easily translate to whatever particular institutions are devised to punish them. The article suggests, in this context, that on balance the practices of the Court are still better understood as a direct function of State consent. This is true when examining both the practice of the ICC towards non-States Parties and, crucially, towards States Parties. To see the Court as ‘merely’ the Court of its States Parties, however, is not to give up on the idea of universal repression, but to see it as mediated in practice by the complex agency of those States that pursue that aim.

In: Max Planck Yearbook of United Nations Law Online