Trial and Appeal

Human rights violations in conflict settings

Victims of Crimes and Their Concerns

This book demonstrates how, after many years of inactivity after the World War II tribunals, judges at the Yugoslav, Rwanda and Sierra Leone tribunals, and to a lesser extent the International Criminal Court, have seized the opportunity to develop international law on war crimes, crimes against humanity and genocide. Meernik and Aloisi argue that judges are motivated by a concern for human rights protection and the legacy of international criminal justice. They have progressively expanded the reach of international law to protect human rights and have used the power of their own words to condemn human rights atrocities. Judges have sentenced the guilty to lengthy and predictable terms in prison to provide justice, deterrence of future violations and even to advance peace and reconciliation. On judgment day, we show that judges have sought to enhance the power of international justice.

Judgment Day: Judicial Decision Making at the International Criminal Tribunals

Two provisions of the Rome Statute of the International Criminal Court (ICC), which address complementarity and discretion to decline prosecution "in the interests of justice," give the ICC Prosecutor the ability to defer to a State wishing to undertake its own transitional justice program. Given the global preference for the imposition of individual criminal liability for serious international crimes-as evidenced by the creation of the ICC-it is highly likely that most such programs will involve prosecution.This Article examines whether the ICC Prosecutor might defer prosecution when a State that favors other mechanisms of accountability and reconciliation decides not to prosecute the individuals suspected of involvement in conflict atrocities. Before responding to such a proposal, the Prosecutor should evaluate the stability of the country emerging from conflict, the will of the people affected by the proposal, and the gravity of the crimes at issue. This Article offers a framework for a national plan for justice and peace that includes investigative, retributive, and reparative elements, and argues that such a plan is likely to pass muster with the ICC Prosecutor. It then contends that the ICC Prosecutor should decline to prosecute in these situations because the States are in the best position to assess and implement their post-conflict goals and can tailor any policy to their needs. An insistence on prosecution by the ICC Prosecutor would be shortsighted and would fail to consider the complexities of each State's unique climate as it transitions from violence to peace.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2297146_code1557990.pdf?abstractid=2297146&mirid=1

Does Justice Always Require Prosecution? The International Criminal Court and Transitional Justice Measures

Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom's continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. Nearly unanimous—the sole dissenter on the merits was Judge Joan E. Donoghue of the United States—the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both. It did so in a manner that implicated the ICJ's role as the judicial organ of the United Nations, in whose General Assembly and other political bodies the next episodes in the Chagos controversy seem destined to unfold.

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Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

Child soldiers were a central concern in the first decade of the International Criminal Court; indeed, the court’s first trial, Prosecutor v. Lubanga, dealt exclusively with the war crimes of conscripting, enlisting, and using child soldiers. This article compares the attention that the court has paid to children – an attention that serves the express terms of the ICC Statute – with the relative inattention in post-World War II international instruments such as the statutes of the Nuremberg and Tokyo tribunals. The article then analyzes the Lubanga conviction, sentence, and reparations rulings. It recommends that the ICC focus attention on all the ways that armed conflict affects children, as a means to advance goals of accountability, redress, and prevention.

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Children and the First Verdict of the International Criminal Court

against women, but it was a mixed victory, less successful in practical terms. The decision did not, for example, constrain Karadžić’s actions, or deliver actual financial redress for his victims due to the obstacles to collecting on the damage award. MacKinnon’s insistence on foregrounding sexual politics is a valuable counterweight to the vacillation about women’s lives common in international fora, where women’s equality is often regarded as a negotiable value. This book serves as an introduction to her powerful voice, and I recommend it as an important record of her engagement in many landmark developments in the recognition of women’s rights. It manifests, however, the perhaps inevitable tensions resulting from multiple goals: political project, mobilization for women’s rights, and scholarly analysis. The book’s argument rests on a number of fixed dichotomized categories (such as women/men, international/national) and pays insufficient attention to the conflicts, contradictions, and slippages the categories involve. We still need a deeper analysis of questions such as the relationship between local and international spheres, the way that the categories of “men” and “women” are constructed in international law, and the operation of sex and gender in this arena. Are Women Human? offers answers, when perhaps what we need are better questions, including how law produces the subjects it regulates. The political struggles of feminism encourage the divination of a single cause of women’s inequality with men. It is more difficult to theorize the nonlinear nature of the feminist project—the ways in which it moves forward and slips backwards—and the insecurity of advances, as well as the ways in which feminist vocabularies can be deployed to preserve the status quo.

Reimagining Child Soldiers in International Law and Policy

¶1 Among the figures known to ancient Rome was Janus, a deity able to see both the past and the future in a single two-sided gaze. Janus introduced civil law to Rome, it is said, and “was the guardian of all entrances, thresholds, beginnings, and endings.”1 It seems fitting to invoke Janus for this examination of 2011, a year when global criminal justice poised on a threshold. The year began with plans to vet candidates and ended with the election of a new Prosecutor and new judges charged with enforcing the Rome Statute during the second decade of the International Criminal Court.2 It was the twentieth year since the U.N. Security Council became seized of the conflict in the Balkans3—an event that would lead the Council first to warn combatants of potential prosecution,4 and then to establish a mechanism for such prosecutions, the International Criminal Tribunal for the former Yugoslavia (ICTY).5 The International Criminal Tribunal for

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Diane Marie Amann

Papers

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

Children and the First Verdict of the International Criminal Court

Reimagining Child Soldiers in International Law and Policy

A Janus Look at International Criminal Justice