This second edition of Volume I of the three-volume Treatise on International Criminal Law addresses the foundations of international criminal law and the emerging general principles. It examines the history of the discipline and the concepts behind it. Starting with the development of international criminal justice, the book proceeds as follows: it attends to the sources of international criminal law, then moves to investigate the general structure of crime in international criminal law, and addresses in detail the concept and forms of individual criminal responsibility; it then turns to the subjective requirements of criminal responsibility, and defences that exclude such responsibility. International criminal justice is a flourishing field, with the birth of new international criminal tribunals and both accountability and investigative mechanisms. Case law increases rapidly, so does the ensuing substantive scholarship. This is also true for international criminal law’s foundations and general principles, treated in this volume. Thus, the previous edition has been completely revised, updated, and rewritten in some parts. The author strived to include both relevant case law and scholarly work up to March 2021.

Treatise on international criminal law

International criminal law has witnessed a rapid rise after the end of the Cold War. The United Nations refers to the birth of a new 'age of accountability', but certain historical objections, such as selectivity or victor's justice, have never fully gone away, and many of the justice dimensions of international criminal law remain unexplored. Various critiques have emerged in socio-legal scholarship or globalization discourse, revealing that there is a stark discrepancy between reality and expectation. Linking discussion of legal theories, case-law and practice to scholarship and opinion, A Critical Introduction to International Criminal Law explores these critiques through five main themes at the heart of contemporary dilemmas:The shifting contours of criminality and international crimesThe tension between individual and collective responsibilityThe challenges of domestic, international, hybrid and regional justice institutionsThe foundations of justice proceduresApproaches towards punishment and reparationSuitable for students, academics and professionals from multiple fields wishing to understand contemporary theories, practices and critiques of international criminal law. This title is also available as Open Access on Cambridge Core.

A Critical Introduction to International Criminal Law

Over the past decades, international criminal law has evolved to become the operative norm for addressing the worst atrocities. Tribunals have conducted hundreds of trials addressing mass violence in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, and other countries to bring to justice perpetrators of genocide, war crimes, and crimes against humanity. But international courts have struggled to hold perpetrators accountable for these offenses while still protecting the fair trial rights of defendants. Punishing Atrocities through a Fair Trial explores this tension, from criticism of the Nuremberg Trials as 'victor's justice' to the accusations of political motivations clouding prosecutions today by the International Criminal Court. It explains why international criminal law must adhere to transparent principles of legality and due process to ensure its future as a legitimate and viable legal regime.

Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism

https://corpus.ulaval.ca/jspui/bitstream/20.500.11794/25327/1/31089.pdf

La cour pénale internationale et le secret : de l'atténuation de la confidentialité au nom de l'impératif d'effectivité

...............................................................................................viii LIST OF ABBREVIATIONS.............................................................................ix ACKNOWLEDGEMENTS .............................................................................xix CHAPTER

Application of the state immunity rule in the international criminal justice system: problems arising and a critique of legal response mechanisms

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions. This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness.

/pdf/toward-an-international-criminal-procedure-due-process-3vidbn67co.pdf

Toward an International Criminal Procedure: Due Process Aspirations and Limitations

Can singing a song constitute incitement to genocide? A 2009 decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Hutu extremist pop singer Simon Bikindi said it can But in convicting Bikindi, it failed to apply, much less develop, the incitement law framework it had established, albeit in a piecemeal fashion, through a string of prior opinions (most notably in the famous 'Media Case') That framework asks judges to consider the purpose, text, context, and relationship between the speaker and subject to determine if a speech constitutes criminal incitement Critics have pointed to the test's piecemeal development, its supple contours, and the Tribunal's desultory application of it and proposed replacing it with an entirely new test As African dictators have supposedly cited the ICTR framework to justify stifling legitimate dissent, such a drastic solution is necessary, they argue, to promote freedom of speech and prevent genocide This Article acknowledges these concerns but proposes a middle-ground approach instead Given doctrinal glitches in the proposed new tests, the existing framework should be preserved but elements of the new tests should be incorporated as 'evaluative factors' within the 'context' analysis At the same time, additional contextual reference points (such as the outbreak of war and the personal history of the speaker) should be appended to the existing test An entirely new element, 'channels of communication,' should be tacked on as well to help distinguish between written versus broadcast media (given that the latter is more effective at provoking imminent lawless violence) Similarly, as suggested by the Bikindi decision, two additional elements - temporality (was the speech uttered within the proper contextual time frame?) and instrumentality (was the speaker responsible for the speech's dissemination) - should be appended to the existing framework Finally, an incitement-technique typology, which would explicitly recognize various indirect incitement methods (such as 'accusation in a mirror' and 'victim-sympathizer conflation'), should also be integrated into the analysis This compromise approach will provide the necessary flexibility to permit nuanced incitement analysis while insuring greater degrees of normative coherence, free expression and, most importantly, effective genocide prevention

/pdf/music-and-genocide-harmonizing-coherence-freedom-and-4zl5wr36xd.pdf

Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Given the substantive law advances, why is international criminal procedure lagging behind? Why has it failed to achieve the level of due process offered by the most rights-protective countries, such as the United States? Are there long-term structural limits to the growth of international criminal procedure? Neither the framers of the new international tribunals nor the academic commentators have attempted to answer these questions in a systematic or comprehensive way.

/pdf/toward-an-international-criminal-procedure-due-process-3bmtv0yb2d.pdf

It is an article of faith among transnational penal experts that Sir Peter von Hagenbach's 1474 prosecution in Breisach for atrocities committed serving the Duke of Burgundy constitutes the first international war crimes trial in history. Hagenbach was tried before an ad hoc tribunal of twenty-eight judges from various regional city-states for misdeeds, including murder and rape, he allegedly perpetrated as governor of the Duke's Alsatian territories from 1469 to 1474. Though it remains obscure in the popular imagination, most legal scholars perceive the trial as a landmark event. Some value it for formulating an embryonic version of crimes against humanity. Others praise it for ostensibly charging rape as a war crime. And all are in agreement that it is the first recorded case in history to reject the defense of superior orders. Such a perspective has arguably helped invest the Nuremberg trials with greater historical legitimacy and lent subtle sanction to the development of international criminal law in the post-Cold War world. But the legal literature typically deals with the trial in very cursory fashion and its stature as pre-Nuremberg precedent may hinge on faulty assumptions. As the 1990s explosion of ad hoc tribunal activity is nearing its end and the legal academy is taking stock of its accomplishments and failures, it is perhaps time to look more closely at the Hagenbach trial. This piece does that by digging below the surface and revisiting some of the historical and legal premises underlying the trial's perception by legal academics. In the main, international law specialists have relied on older historical accounts to conclude that Hagenbach's service as Burgundy's Alsatian bailiff constituted a five-year reign of terror that culminated in a legitimate and ground-breaking atrocity conviction. But revisionist historians tend to see Hagenbach's ordeal not as a good-faith justice enterprise but rather as a show trial meant to rebuff the territorial ambitions of Sir Peter's master, Charles the Bold. They emphasize that liability was grounded on confessions obtained through torture. And while they concede that Hagenbach may have been boorish and autocratic, they note that the first few years of his rule were relatively pacific and the 1474 uprising against Sir Peter was primarily a reaction to attempted Burgundian regional encroachments and perceived feudal suppression of growing urban and bourgeois prerogatives. The trial itself, they point out, was not international at all as the men who sat in judgment of Hagenbach were all subjects of the Holy Roman Empire. Nor was it a war crimes trial, since there was no armed conflict at the time the alleged atrocities took place. But there are shortcomings in the revisionist analysis as well. The high level of animosity shown Hagenbach, as demonstrated by the severity of the torture and the stripping of his knighthood, indicate that the atrocity allegations may not be unfounded. Moreover, there is evidence that Burgundy's occupation of the territory was hostile and so the charges against Hagenbach may very well be considered war crimes. Finally, by 1474, the Holy Roman Empire was no longer a viable political entity and so the ad hoc tribunal may indeed have been international in nature. It is no coincidence that such a unique event took place between the erosion of medieval hegemony and the imminent establishment of Westphalian sovereignty. Not until the Westphalian veil was pierced by the Nuremberg trials nearly five hundred years later, did the subject of the Hagenbach trial take on contemporary relevance in the legal literature. In the end, the piece concludes that while some of its details may be lost in the mists of time and its legal status may remain muddled in theoretic gray zones, the Hagenbach trial should continue to play an important role as an historic and conceptual pillar of international criminal law's "pre-history."

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2010535_code666745.pdf?abstractid=2006370&mirid=2

The Trial of Peter Von Hagenbach: Reconciling History, Historiography, and International Criminal Law

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators contend that these statements constitute direct and public incitement to commit genocide. This Article analyzes this assertion by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. It pieces together an analytical framework based on principles derived from these cases, including the Canadian Supreme Court's opinion in the Leon Mugesera matter. Using this framework, it demonstrates that while a successful prosecution would entail clearing significant substantive and procedural hurdles, it could include both incitement and crimes against humanity charges in light of the incitement's nexus with Iran's sponsorship of terrorist attacks against Israel. However, to take the case, the International Criminal Court would have to put aside political pressures related to the Middle East's toxic political environment and the absence of causation. The odds of this happening are long. As a result, the Article proposes that incitement law shift its focus from post-atrocity punishment to deterrence. This would permit early intervention and center incitement on its core mission of atrocity prevention. The Article also suggests that euphemisms employed to disguise incitement, such as "predictions" of destruction, when anchored to direct calls for violence, should also be considered acts of direct incitement. Finally, with respect to crimes against humanity, the Article explains that attacks on a civilian population carried out by a proxy at the insistence of the inciter, rather than directly by the actual inciter himself, should be sufficient to establish liability. At the same time, in the interest of protecting free speech, the crime should not be charged absent evidence of calls for protected-group violence, as opposed to mere hatred.

/pdf/from-incitement-to-indictment-prosecuting-iran-s-president-49sj0j3utf.pdf

From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework

Gregory S. Gordon

Papers

Toward an International Criminal Procedure: Due Process Aspirations and Limitations

Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law

Toward an International Criminal Procedure: Due Process Aspirations and Limitations

The Trial of Peter Von Hagenbach: Reconciling History, Historiography, and International Criminal Law

From Incitement to Indictment? Prosecuting Iran's President for Advocating Israel's Destruction and Piecing Together Incitement Law's Emerging Analytical Framework