This volume is the first in a new series of Studies on the Frontiers of International Law. The term ‘frontier’ is traditionally associated with proximity to a boundary or a demarcation line. But it is also a connecting point, i.e., a passage or channel between spaces that are usually considered as separate entities. The Series aims to explore the visible and imaginary boundaries of scholarship in International Law. It is designed to test the existing table of contents, vocabulary and limits of ‘Public International Law’, to investigate lines and linkages between ‘centre’ and ‘periphery’, and to re-map or re-think some of its conceptual boundaries.
The current volume is written in this spirit. It deals with the tension between unity and diversification which has gained a central place in the debate under the label of ‘fragmentation’. It explores the meaning, articulation and risks of this phenomenon in a specific area: International Criminal Justice. It brings together established and fresh voices who analyse different sites and contestations of this concept, as well as its context and specific manifestations in the interpretation and application of International Criminal Law. The volume thereby connects discourse on ‘fragmentation’ with broader inquiry on the merits and discontents of legal pluralism in ‘Public International Law’.
Larissa van den Herik is a Professor of Public International Law and Editor in Chief of the
Leiden Journal of International Law. She has previously worked at the Vrije Universiteit Amsterdam, where she defended her PhD thesis on
The Contribution of the Rwanda Tribunal to the Development of International Law (Martinus Nijhoff) in 2005. She was awarded the Bulthuis Van Oosternieland Prize for this academic work. She is the author of several articles and annotations in the field of public international law, international criminal law and the law on peace and security, as well as co-editor of collections of essays in the field of international criminal law. She coordinates the Marie Curie Research Course and Top Summer School on International Criminal Law (together with Dr. Carsten Stahn).
Carsten Stahn is Professor of International Criminal Law and Global Justice and Programme Director of the Grotius Centre for International Studies. He has previously worked as Legal Officer in Chambers of the International Criminal Court (2003-2007) and as Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (2000-2003). He obtained his PhD degree (
summa cum laude) from Humboldt University Berlin, Germany. He holds LL.M. degrees from New York University and Cologne/Paris I (Panthéon-Sorbonne). He is author of
The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press, 2008/2010) which received the Ciardi Prize 2009 of the International Society for Military Law and the Law of War. He has published numerous articles on international criminal law and transitional justice, and edited several collections of essays in the field. He is Senior ICC editor of the
Leiden Journal of International Law, Executive Editor of the
Criminal Law Forum and Correspondent of the
Netherlands International Law Review. His work has been cited in the jurisprudence of the ICC, the ICJ and the European Court of Human Rights.
Table of contents
Abbreviations; Preface and Acknowledgments; Introduction
Chapter 1 ‘Fragmentation’, Diversification and ‘3D’ Legal Pluralism: International Criminal Law as the Jack-in-the-Box?
Carsten Stahn & Larissa van den Herik;
Part I Institutional Aspects of Fragmentation
Chapter 2 The Judicial Dialogue between the ICJ and International Criminal Courts on the Question of Immunity
Rosanne van Alebeek;
Chapter 3 Binocular Vision: State Responsibility and Individual Criminal Responsibility for Genocide
Chapter 4 Finding Custom: The ICJ and the International Criminal Courts and Tribunals Compared
Chapter 5 Human Rights Cases in Sub-regional African Courts: Towards Justice for Victims or Just More Fragmentation?
Helen Duff y;
Chapter 6 Praising the Region: What Might a Complementary Criminal Justice System Learn from the Inter-American Court of Human Rights?
Cecilia Cristina Naddeo;
Chapter 7 The Regionalization of Criminal Law – the Example of European Criminal Law
Chapter 8 Alternative Justice Mechanisms, Compliance and Fragmentation of International Law
Chapter 9 Limits of Information-sharing between the International Criminal Court and Truth Commissions
Chapter 10 Puzzling over Amnesties: Defragmenting the Debate for International Criminal Tribunals
Part II Fragmentation of Substantive Law
Chapter 11 Chinese Humanitarian Law and International Humanitarian Law
Chapter 12 Approximation or Harmonisation as a Result of Implementation of the Rome Statute
David Donat Cattin;
Chapter 13 Fragmentation of the Rome Statute through an Incoherent Jurisdictional Regime for the Crime of Aggression: A Silent Operation
Deborah Ruiz Verduzco;
Chapter 14 Domestic Prosecution of Genocide: Fragmentation or Natural Diversity?
Cristina Fernández-Pacheco Estrada;
Chapter 15 The Rome Statute and Domestic Proceedings for Ordinary Crimes: The (In)Admissibility of Cases before the International Criminal Court
Chapter 16 Fragmentation of the Notion of Co-Perpetration in International Criminal Law?
Chapter 17 The
Mens Rea Enigma in the Jurisprudence of the International Criminal Court
Mohamed Elewa Badar;
Chapter 18 Reception of Common Law in Substantive International Criminal Law
James L. Bischoff;
Chapter 19 The Principle of Complicity under International Law – Its Application to States and Individuals in Cases involving Genocide, Crimes against Humanity and War Crimes
Part III Fragmentation and Criminal Procedure
Chapter 20 Unifi cation or Fragmentation? Structural Tendencies in International Criminal Procedure
Chapter 21 Prosecutorial Discretion in International Criminal Justice: Between Fragmentation and Unification
Chapter 22 Fragmentation in International Criminal Law and the Rights of Victims
Chapter 23 The Influences of French Law on Appeal Proceedings before the International Criminal Court and the Tribunals