Beyond Punishment in International Criminal Justice

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With her considerable experience in fighting against international impunity, Ms Bensouda is the first woman from Africa to take this post. Beyond this symbolic aspect, it was her experience within the ICC and with the International Criminal Tribunal for Rwanda that led to her appointment.

Some may even say that she has become one of the most powerful women in the world. In spite of these encouraging steps forward, the ICC still has a number of challenges to overcome. Firstly, there needs to be international recognition for the ICC and its founding treaty, the Rome Statute. Of course, there is a cost associated with allowing victims to participate and providing reparations for them, but budget cuts must never jeopardise the principle of allowing victims to participate, as set out in the Rome Statute.

Lastly, without its own police force, the ICC depends on the goodwill and cooperation of states, particularly in arresting the accused. As a result, Sudanese President Omar El Beshir, who is accused of crimes against humanity, is able to travel freely between countries that have heeded this call.

Beyond Punishment In International Criminal Justice 2010

It is important to celebrate International Criminal Justice Day in order to continue the fight against impunity and send a message to those who commit international crimes. From now on, they will answer for their crimes and their victims will be able to seek reparations. Moreover, some behaviour criminalised under international law is permitted in national law, while both rules run in parallel at the international and the national levels. For instance, the prohibition of expanding bullets in armed conflicts is recognised as a customary rule in international humanitarian law.


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By contrast, the use of expanding bullets may be lawful in a law enforcement context at the national level. It is hard to seek sufficient evidence of national laws and cases to verify the existence of customary law. However, this idea does not mean that national cases do not matter.


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  4. National cases are sometimes hard evidence from which a customary rule is to be ascertained. In this circumstance, these national prosecutions are valuable evidence for identifying the existence of international crimes in customary law.

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    The exercise of universal jurisdiction is another crucial piece of evidence for the identification of custom. International instruments are a form of evidence of opinio juris. In using international instruments for this purpose, however, some words of caution are necessary. First, the definitions of crimes in international instruments may be broader or narrower than that in custom.

    Apart from adding new requirements, the scope of a crime in a treaty may be restricted by excluding some underlying acts; in particular, conventions that are not exhaustive codifications of existing customary law. Judge Schomburg of the ICTY also criticised the reference to Article 28 of the Rome Statute concerning command responsibility, as this treaty was a delicate compromise resulting from arduous negotiations.

    The General Assembly Resolution and the Draft Convention included political groups in their definitions of genocide, although objections existed during the preparatory works as to the inclusion of such groups. States made compromises in order to adopt a treaty. The final Genocide Convention excludes the elimination of political groups from the definition of genocide. The example of the Genocide Convention also shows that preparatory works of international instruments are essential for the customary identification.

    Thirdly, it is necessary to note that in a treaty there is a difference between the obligations on States and the liabilities of individuals. Lastly, the retroactive application of international instruments should be avoided due to the risk of violating the principle of legality.

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    Cases of the ad hoc Tribunals have confirmed this idea. This section has shown that the evidence assessment involved in custom identification tends to be problematic because of the peculiarities of international criminal law and the obstacles in the evaluation of the evidence. These peculiarities mingling with each other make the identification task more complex, which should be kept in mind in determining the existence of customary law.

    These features partly serve to explain why international criminal tribunals practice flexibility when identifying customary rules in international criminal law. In reality, many States do not have capacity, or do not need, to prosecute international crimes in order to contribute to the formation of this custom.

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    The evidence of opinio juris is raised to a higher importance in the identification of customary law. It means that once sufficient opinio juris of a customary rule exists, less State practice is required to be enough for the identification of that rule. A supposed customary rule and evidence of the two elements can be put on two sides of a scale. A customary rule is emerging, or modified, only if the side with the two-element acquired enough weight to either make the other side rise or balance the scale.

    For the change of a pre-existing customary rule, evidence of both elements is required to ascertain the content of a customary rule, while a denial of an existing rule would also be supported with sufficient opposing evidence of two elements.

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    This paper examined the methods used to identify customary rules in international criminal law and discussed the peculiarities in the process of ascertainment. To sum up, the view that customary law is either a source or an interpretative aid of international criminal law is well accepted, and customary law continues to play a role in this field.

    In academia, no consensus exists to adopt a different method that deviates from the two-element approach, to identify customary rules in this field. The observation of some cases of international criminal tribunals has shown that tribunals either relied on the two-element approach or kept silent in the identification of customary law.

    They do not deny that practice is not necessary for the formation of customary law but evidence of opinio juris is given more weight in specific cases. The peculiarities of international criminal law, in particular, the obstacles for the assessment of evidence of practice partly explain their flexible custom-identification approach. This paper concludes that a different method departing from the two-element approach has not emerged in the identification of customary rules in international criminal law. For the observed peculiarities and difficulties, a slight adaptation of the two-element approach focusing on opinio juris is acceptable for case-by-case identification.

    During the assessment of evidence of the two elements, tribunals should carefully bear in mind these peculiarities and the principle of legality, specifically the prohibition of retroactive application of the law. International criminal tribunals have not reached an agreement with absolute certainty or in detail about the method to identify specific customary rules. If no corresponding pronouncement of that State is available, it seems that the only evidence of opinio juris is inferred from State practice; whereas if no action but merely abstract statements exist, it seems that the evidence of State practice is also deducted from opinio juris.

    Mendelson claims that subjective and objective elements of State practice are two sides of a coin. Opinio juris is not an element for the formation of customary international law, but a part of subjective element of State practice. The International Law Association adopted this standpoint in its resolution. Interlocutory Appeal Decision paras 32—36; Nahimana et al. Schabas n 33 ; Bitti n Delegates expressed concerns about decisions of international criminal tribunals on the basis of customary law. Other delegations addressed opposing opinions. Interlocutory Appeal Decision n 19 paras 37, However, there needs to be a link between actual violence and hate speech as a violation of the right to life.

    PST 14 August Appeal Judgment n 25 paras — As the Eritrea-Ethiopia Claims Commission noted, a party wishing to challenge the customary nature of a provision would bear the burden of proof. The author would like to thank all conference participants and reviewers for their detailed comments. Tan, Y. Utrecht Journal of International and European Law , 34 2 , pp. Tan Y. Utrecht Journal of International and European Law.

    Utrecht Journal of International and European Law , 34 2 , 92— Tan, Yudan. Utrecht Journal of International and European Law 34 2 : 92— Utrecht Journal of International and European Law 34, no. Tan, Y.. Utrecht Journal of International and European Law , vol. Start Submission. Abstract This paper aims to examine whether a different methodology has emerged to identify customary rules in the field of international criminal law.

    How to Cite: Tan, Y. Published on 22 Nov Peer Reviewed. CC BY 3. Introduction Customary international law is important for practitioners in international and national courts. The Role of Customary Law in International Criminal Law Before examining the method of custom-identification, it is necessary to comment on the role of customary law in international criminal law.

    Theories to Identify Customary International Law This section examines academic theories to determine whether scholars have reached a consensus to create a different method of customary identification within international criminal law. Identification of Customary International Law: the Classic Theory In determining how a certain practice becomes a customary rule, the prevailing view is the presence of both subjective and objective elements. Criminal justice cannot repair the damage inflicted by an atrocious civil war because in the former Yugoslavia the line between winners and losers, between perpetrators and victims, is too blurred.

    If Praljak's suicide is destined to become the final emblem of a quarter of a century of hard work carried out by investigators, magistrates and witnesses, one must wonder whether international criminal justice has effectively achieved its objectives. The future belongs to the International Criminal Court ICC : destined to be a permanent institution and to potentially investigate crimes committed in at least all the member countries, its scope for action is much broader than that of the ICTY.

    In a few months, we will celebrate the twentieth anniversary of the signing of its founding treaty. Is there anything to celebrate? The Coalition for the International Criminal Court, an active non-governmental organisation which since the beginning has monitored the activities of the institution, will be the first to offer us a critical analysis.

    On the one hand, the very fact that the Court became operational after only four years of the signing of the treaty was an unexpected success. At present, the Court has a sumptuous building, authoritative and well paid judges, and conducts investigations. An extremely high number of states, as many as , have agreed to submit — at least formally — to its jurisdiction. Yet, the ICC lacks an ingredient fundamental for any tribunal: defendants. In fifteen years of activity, a few dozen people have been indicted far fewer than those indicted by the ad hoc Tribunals for the former Yugoslavia and Rwanda, which both investigated a specific territory and limited time period.

    Compared to the impressive number of international crimes committed around the world which still go unpunished, the number of incriminations is paltry. When the Court has chosen to target defendants of some importance, as in the case of Sudanese president al-Bashir, member states have not cooperated to extradite the accused. So much so that the indictments have had no meaningful political outcome and al-Bashir continues to keep tight control over his country.

    When he received his first indictment in , al-Bashir said scornfully that it was not worth the ink with which it was written. And the facts show that he was right. So far, the Court has been an empty shell, operating only when it does not interfere too closely with the interests of the most powerful states. Is an annual budget of around million euros and employees justified? There is a growing legal literature that analyses in detail the statutes and norms of international law and shows, often rightly, that the ICC is an important precedent that needs time to consolidate. But all this risks being technicalities among lawyers.

    Instead, we need to ask ourselves what victims and citizens need and whether they can wait before the ICC pulls out its claws to defend the defenceless. In some cases, the member states and financiers of the ICC have used their power to block uncomfortable investigations and incriminations.

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