The Oxford Handbook of International Criminal Law (Oxford Handbooks)

Cover The Oxford Handbook of INTERNATIONALCRIMINAL LAW Copyright Acknowledgements Table of Contents Table of Cases Table of Primary Legislation Table of International Treaties and Conventions List of Contributors Introduction Actors Spaces Rationales Crimes Modalities Narratives Anxieties Boundaries Future(s) Section I: ACTORS Chapter 1: An Empirical Analysis of International Criminal Law: The Perception and Experience I. Introduction II. Listening to the Accused as a Vector of Knowledge A. Epistemological Approach B. Methodology III. Positioning of Those Tried: A Structural Interrelation A. A Gap Between Expectations and Reality B. Violence and Unfairness of the Procedure C. A Politicized and ‘Outgroup’ Justice D. The Role Assigned to the Defendant IV. Conclusion Chapter 2: Defence Perspectives on Fairness and Efficiency at the International Criminal Court I. Introduction II. The Rise of Managerial Judging at International Criminal Courts III. Defence Views on Fairness and Efficiency at the ICC A. Survey Method B. Survey Findings 1. Judicial Managerialism 2. Defence Investigative Resources 3. Prosecutorial Disclosure 4. Confirmation of Charges IV. The Future of Managerial Judging and Procedural Fairness in International Criminal Procedure Chapter 3: Neither Here nor There: The Position of the Defence in International Criminal Tribunals I. Introduction: The Symbolic Inclusion of the Defence II. The Foundational Balancing Away of the Defence A. Customary Law as a Vehicle for Moral Condemnation B. Interpreting International Criminal Law and the Fight against Impunity C. The Ultimate Balancing Away on the Basis of Moral Condemnation III. The Procedural Balancing Away of the Defence A. The Participation of Victims B. Evidentiary Standards C. Expeditiousness IV. The Institutional Balancing Away of the Defence V. The Systemic Balancing Away of the Defence VI. Concluding Thoughts: Working on the Periphery as Defence Counsel Chapter 4: The Creation of an Ad Hoc Elite: And the Value of International Criminal Law Expertise on a Global Market I. Introduction II. Theory, Method, and Data III. The Advent of the ICL Elite IV. The Creation of a Group and its Symbolic Capital V. The Value of the ICL Elite on a Broader Market VI. Conclusion Chapter 5: Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law I. Introduction II. Publicists in Public International Law A. Publicists and Gap-Filling in International Law B. Publicists as a Subsidiary Source of Law III. Publicists at the International Criminal Court A. Application and Hierarchy of Sources in ICL B. The Role of Scholarship in the Jurisprudence on Modes of Liability IV. The Reliance on Doctrine A. Scholars and the Dogmatik B. Scholars and their relationship to international criminal law V. Conclusion Section II: SPACES Chapter 6: Legitimacy in War and Punishment The Security Council and the ICC I. Introduction II. Moral Expressivism, Standing to Blame, and Institutional Legitimacy III. The Legitimacy Problem in International Criminal Justice IV. Legitimate Illegality and Legal Illegitimacy V. The Path Forward Chapter 7: Africa and International Criminal Law I. Introduction II. Versailles, 1919: ‘resist[ing] with impunity’ A. Re-telling Versailles, 1919 B. Presence, Absence, and ‘Re-presentation’ at Versailles III. Nuremberg, 1945: Colonialism, Genocide, and European Crimes A. ‘Nurnberg was colonial’ B. A ‘dark, abiding, signing . . . presence’ C. Threads: Race, Empire, and Affective Regimes IV. The Cold War era: Late colonial violence, Biafra, and apartheid A. Re-telling ‘The Cold War Era’ B. Late Colonial Violence C. The Biafran war, the Postcolonial World Order and the ‘Image[s] of Africa’ D. African States, Apartheid, and the (almost) International Criminal Court V. The 1990s: The Era of (Anti-)Impunity A. April 1994 B. A Present Absence, Almost: Apartheid (and Rwanda) at Rome, 1998 VI. Concluding Remarks Chapter 8: On Regional Criminal Courts as Representatives of Political Communities: The Special Case of the African Criminal Court I. Introduction II. The Social Function of Criminal Law III. From International to Regional Criminal Law Enforcement: A Step Forward? IV. The Prospects of an African Criminal Court V. Some Final Reflections Section III: RATIONALES Chapter 9: Taking Internationalism Seriously: Why International Criminal Law Matters I. Introduction II. Evaluating the Traditional Rationales of International Criminal Law III. Robust Internationalism as a Constitutive Component of International Criminal Law A. The ICC B. The Ad Hoc Tribunals C. Universal Jurisdiction D. Hybrid Tribunals IV. Taking Internationalism Seriously: The Case for Robust Internationalism V. Conclusion Chapter 10: Impunities I. Introduction II. Impunity in Text and Discourse A. Enabling Instruments B. A Sampling of Press Releases and Public Statements C. Punishment, Peace, and Transition III. Impunity and Selectivity IV. Reimaging Punishment V. Conclusion Chapter 11: Courting Failure: When Are International Criminal Courts Likely to be Believed by Local Audiences? I. Introduction II. Factors Predictive of Failure A. Objective and Subjective Limitations on the Processing of Information About Atrocities B. Towards Generalization C. A Predictive Hypothesis III. Nuremberg and Tokyo IV. Rwanda V. Sierra Leone and Cambodia VI. Conclusion Section IV: CRIMES Chapter 12: ‘What is An International Crime?’ The nature of international crimes The obligation to criminalize Specificity and uniformity Direct Prohibition The uses of ICL Conclusion Chapter 13: A Theory of International Crimes: Conceptual and Normative Issues I. Introduction II. What Is an International Crime? III. What Makes a Given Conduct an International Crime? IV. Conclusion Chapter 14: From Aggression to Atrocity Rethinking the History of International Criminal Law I. Introduction II. War Prevention as International Law’s Fondest Hope III. Nuremberg as an Aggression Trial IV. The Cold War: Definition, Critique, and Decline V. Conclusions Chapter 15: Enslavement as a Crime against Humanity: Some Doctrinal, Historical, and Theoretical Considerations I. Introduction and Background II. Doctrinal Underpinnings, ‘Humans’ and ‘Persons’ III. Historical Sources: Roman Law’s Enduring Influence IV. Theoretical Framework: Natural Life and Political Life V. Conclusion Section V: MODALITIES Chapter 16: A Criminological Approach to the ICC’s Control Theory I. Introduction II. International Crimes: A Different Type of Criminality? A. The Political and Ideological Context B. The Organizational and Social Context C. The (Social-)Psychological Context D. Conclusion III. Perpetrators of International Crimes IV. The ICC and the Concept of Individual Criminal Responsibility A. The Difference between Principals and Accessories B. Commission via Organizational Control? C. Shortcomings of the Control Theory and How to Repair Them V. Conclusion Chapter 17: The Two Cultures of International Criminal Law I. Introduction II. Expansionism in International Criminal Law III. The ‘Franconian’ Culture of International Criminal Law: Sources-Based Expansionism IV. The Roman culture of international criminal law: hermeneutic expansionism V. Concluding Remarks: Cultural Transformation and the Contradictory Beliefs of International Criminal Lawyers Chapter 18: Immunity and Impunity I. Introduction II. Immunity and Responsibility III. Combatant Immunity and Official Immunity IV. Conclusion Chapter 19: Epistemological Controversies and Evaluation of Evidence in International Criminal Trials I. Introduction II. Intuitive Holistic Approach v. Deconstruction III. Is the Standard of Proof for Conviction Subjective or Objective? IV. Mathematical Methods in Evaluating Evidence V. Criticism Against the Beyond Reasonable Doubt Standard VI. Is Fact-Finding at the International Level Possible? The Turn to Empirical Legal Scholarship VII. Conclusions Chapter 20: The Right to Truth in International Criminal Law I. Introduction II. Background: The Right to Truth at the Crossroads between International Human Rights Law and International Criminal Law III. The Right to Truth at the ICC A. Truth and the International Criminal Trial B. Victims’ ‘Personal Interests’ and the Determination of Guilt or Innocence C. New Charges Against the Accused D. Right of Victims to Introduce Evidence E. Victims’ Obligation to Disclose Exonerating Evidence IV. Reflection Chapter 21: From Machinery to Motivation: The Lost Legacy of Criminal Organizations Liability I. Introduction II. The Origin of Criminal Organizations Liability III. The Practice of Criminal Organizations Liability IV. Criminal Organizations in Contemporary International Criminal Law V. Organization as Machinery, Organization as Motivator VI. Conclusion: An Alternate Reality for Criminal Organizations Section VI: NARRATIVES Chapter 22: Historical Reasoning and Judicial Historiography in International Criminal Trials I. The Flesh of History: Jurisprudence and Historiography II. Legal Infrastructures: Storytelling after the Second World War III. Judicial Historiography: The Nuremberg Paradigm IV. The Twisted Road to The Hague V. Conclusion: The Interdisciplinary Pitfalls of Transitional Trials Chapter 23: Criminal/Enemy I. Introduction II. Enemies but not Criminals III. Criminals but not Enemies IV. Enemies into Criminals: Criminalizing Aggression V. Deconstructing the Criminal/Enemy Dyad Chapter 24: The Enemy of All Humanity I. Introduction II. The Strange Career of the Hostis Generis Humani A. Pirates B. Privateers C. Terror tactics and unbridled aggression D. Slave trading E. The Eichmann trial F. Torture and other core crimes III. An Alternative Genealogy IV. Analyzing the Hostis Generis Humani Chapter 25: Moving Images: Modes of Representation and Images of Victimhood in Audio-Visual Productions I. Introduction II. Representation in Documentary Film A. Attracting Audiences and Representing Reality B. Combining Presentation and Representation III. The Representation of Victims in Documentary Film A. Ideal Victims B. Alternative Messages C. The Bureaucratic Victim IV. Conclusion Section VII: ANXIETIES Chapter 26: International Criminal Tribunal Backlash I. Introduction II. International Criminal Tribunals: Opposition (and Backlash) III. Defining Backlash IV. A Theory-Informed Approach to International Criminal Tribunal Backlash V. South Africa and the International Criminal Court: Archetypal Backlash A. Background B. Choosing Africa: A Pluralist Approach VI. Serbia and the ICTY: Persistent Backlash A. Background B. ‘It is an incredible situation. We always have a problem with Serbia. Always’ VII. Lebanon and the Special Tribunal: Absent Backlash A. Background B. Lebanon and the STL: reassuringly undemanding VIII. Conclusion Chapter 27: The Crises and Critiques of International Criminal Justice I. ‘You and Whose Army?’: International Criminal Law’s Curse II. Of Crises and Critiques A. Crisis, Again? B. Critical Turn C. What Crisis Does III. Legitimacy Skirmishes and Mediatory Spaces A. What Critics Want B. The Mainstream Strikes Back C. Diagnosis IV. Legitimacy as Crisis Management Chapter 28: Hangman’s Perspective: Three Genres of Critique following Eichmann I. Introduction II. Hannah Arendt: The Rule of Law III. Shoshana Felman: Catharsis IV. Netalie Braun: Sacrifice V. Outer Circles of Harm VI. Conclusion Chapter 29: Inequality of Arms Reversed?: Defendants in the Battle for Political Legitimacy I. Courts as Communicative Institutions II. Equality of Arms Reversed A. Defiant Defendants B. Prosecutors C. Political Contexts of Courts III. Legitimacy is Multi-Faceted, Contingent, and Fluid IV. Resonant Prosecution Discourses V. Defendant Tamed by the Process VI. Conclusion Section VIII: BOUNDARIES Chapter 30: International Criminal Law and the Subordination of Emancipation: The Question of Legal Hierarchy in Transitional Justice I. Introduction II. Transitional Justice Hierarchy in Action: Sudan Referral III. Conceptual Background and Legal Origins: Legal Accountability and Social Emancipation A. The Rise of Transitional Justice B. Rights-based Transitional Justice: Accountability vs Emancipation? IV. Legal Hegemony of International Criminal Law in International Transitional Justice A. Darfur Referral Revisited B. Accountability as an Unassailable Norm C. Victims’ Rights Subordinated V. Abandon Rights? The Power of Human Rights in Transitional Justice VI. What Does This Critique Tell Us? Chapter 31: International Criminal Justice and Humanitarianism I. Introduction II. International Criminal Justice Against Humanitarianism III. International Criminal Justice And Humanitarianism A. Politics and Power B. Accountability to Constituencies IV. International Criminal Justice as a Form of Humanitarianism A. Humanitarianism at the ICC B. Legal Humanitarians V. Conclusion Chapter 32: International Criminal Law and Culture I. Introduction II. International Criminal Law’s Encounter of Cultural Difference III. ICL Courts and other Culturally-Informed Post-Conflict Justice Processes: Competing Conceptions of Justice A. Culturally-Informed Justice Processes as Alternatives or Supplements to ICL Trials B. The Risk of Marginalizing Alternative Justice Conceptions and Processes IV. Norm Construction and Trial Participation: Domestic Legal Cultures as ICL Resource A. Hybridization of the ICL Legal System and Domestic Legal Cultures B. Culture Clashes and Adaptation Obstacles among ICL Legal Actors V. The Multicultural ICL Trial: Cross-Cultural Communication Challenges and Culture-specific Evidence A. The Difficulties of Ensuring Accurate Linguistic Translation B. ICL Courts’ Treatment of Culture-specific Arguments VI. Conclusion: Operational, Legitimacy, and Representational Challenges Chapter 33: The Core Crimes of International Criminal Law I. Introduction II. Defining Core Crimes A. Ambiguities in Distinguishing Core Crimes and Treaty Crimes B. Ambiguities in Defining Core Crimes as International Crimes III. Continuities ‘from Nuremberg to Rome’ IV. Discontinuities ‘from Nuremberg to Rome’ V. Biases of the Core Crimes A. Civilization Bias B. Political-Economic Bias C. Aesthetical Bias VI. Conclusion Chapter 34: Transnational Crimes I. Introduction: What Are Transnational Crimes? II. A Conjoined History III. The Problem of Definition A. Defining International Crimes B. Transnational Crime 1. The Sources Thesis 2. The Private Actor Thesis IV. Crimes at the Boundary: Piracy and Torture A. Piracy B. Torture V. Conclusions A. Crimes in Search of an International Tribunal? B. The Public/Private Divide C. Contextual Elements and Seriousness D. Final Thoughts Chapter 35: The Unity of International Criminal Law: A Socio-Legal View I. Introduction II. International Criminal Law and the Politics of Fragmentation A. Between Inflation and Rarefication B. Ideational Approaches and the Quest to Define ‘Truly’ International Crimes C. Critical Approaches: Rarefication as Reorganization of the Field III. The Problem with Fragmentation A. Doctrinally Weak B. Jurisprudentially Suspicious C. Criminologically Dubious IV. Towards A Unified Research Agenda A. Refocusing on the Internationalization of Crime Control Instead of the Criminalization of International Law B. Thinking Globally and Transversally C. Reconfiguring Theory V. Conclusion Section IX: FUTURE(S) Chapter 36: International Criminal Law: The Next Hundred Years Anniversary Waltz Reformist Hope Critical Affinity Unfriendly Scepticism Perimeter Defence Index In the past twenty years the field of international criminal law has become one of the main subfields of international legal scholarship and practice with many texts in the field focusing on core crimes and judicial procedure. Eschewing this traditional approach however, the Oxford Handbook of International Criminal Law instead looks at who the actors are, how international criminal law goes about achieving its ends, where (geographically) it applies, when it applies, and why the system came into being and continues to grow. By taking a step back and critically examining prevailing practices, orthodoxies, and received wisdoms, the authors deploy alternative modes of analysis and bring conceptual, theoretical, and interdisciplinary tools to bear on old and new problems alike. Contributions from key figures in disciplines outside of international criminal law such as anthropology, geography, history, philosophy, international relations, and rhetoric come together with legal experts to illuminate the rich tapestry that is international criminal law. In the past twenty years, international criminal law has become one of the main areas of international legal scholarship and practice. Most textbooks in the field describe the evolution of international criminal tribunals, the elements of the core international crimes, the applicable modes of liability and defences, and the role of states in prosecuting international crimes. The Oxford Handbook of International Criminal Law, however, takes a theoretically informed and refreshingly critical look at the most controversial issues in international criminal law, challenging prevailing practices, orthodoxies, and received wisdoms. Some of the contributions to the Handbook come from scholars within the field, but many come from outside of international criminal law, or indeed from outside law itself. The chapters are grounded in history, geography, philosophy, and international relations. The result is a Handbook that expands the discipline and should fundamentally alter how international criminal law is understood. In the past twenty years, international criminal law has become one of the main areas of international legal scholarship and practice. Most textbooks in the field describe the evolution of international criminal tribunals, the elements of the core international crimes, the applicable modes of liability and defences, and the role of states in prosecuting international crimes.0The Oxford Handbook of International Criminal Law, however, takes a theoretically informed and refreshingly critical look at the most controversial issues in international criminal law, challenging prevailing practices, orthodoxies, and received wisdoms. Some of the contributions to the Handbook come from scholars within the field, but many come from outside of international criminal law, or indeed from outside law itself. The chapters are grounded in history, geography, philosophy, and international relations. The result is a Handbook that expands the discipline and should fundamentally alter how international criminal law is understood