Journal Article•
Epilogue: From Too Tall to Trim and Small
TL;DR: The William & Mary Bill of Rights Journal dedicates itself to the study of constitutions and holds a symposium on international law every year since 2003 as discussed by the authors, which is a somewhat nifty and perhaps even outré move.
Abstract: The William & Mary Bill of Rights Journal dedicates itself to the study of constitutions. Although the Journal begins in (and with) the United States, it also comparatively looks abroad to foreign venues. In light of its mission, however, the fact that the Journal holds a symposium on international law is a somewhat nifty—perhaps even outré—move. It is so because one major difference between law at the international level and law at the national level is that law at the international level lacks much in the way of intentional constitutionalism. While considerable scholarly work posits (or questions) an emergent constitutionalization of international law and the idea(l) of global constitutionalism, one thing remains clear: the international legal order is bereft of any formal, unitary constitution. Assuredly, there are “constitutionalish” instruments at the international level. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are two that spring to mind. Many other widely ratified international instruments serve “constitutionalish” functions to protect and empower specific groups: conventions, for example, promoting the best interests of the child, the elimination of all forms of discrimination against women, and the rights of persons with disabilities. Certain public international organizations moreover may have their own enabling instruments that functionally structure their internal and external operations and define them as legal entities. These instruments are more institutional or constitutive than constitutional, however. They can be loosely analogized to corporate articles of incorporation.
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Journal Article•
TL;DR: In this article, the impact of European Human Rights Law on the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules has been considered.
Abstract: This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect of certain kinds of evidence on both the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The result has been to encourage a shift in the nature of both their epistemic and non-epistemic reasoning during the trial. In its most recent decisions, however, the Court appears to have drawn back from its more activist stance of setting standards of fair participation in evidentiary matters. Instead, the Court has become more fixated on the traditional common law concern with reliability. This has somewhat pushed back the potential that the ECtHR has to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.
5 citations
01 Jan 2019
TL;DR: The concept of gravity is a feature of domestic criminal law, and it also matters in international criminal law as mentioned in this paper, where it appears prominently in the Preamble to the Rome Statute and is used to define a hierarchy of crimes.
Abstract: It is widely accepted that not all crimes have the same gravity. Some crimes are simply more grave than others. Establishing a hierarchy of crimes has been difficult, however, even in domestic contexts. Nevertheless, there is now a growing body of literature addressing the relative gravity of the most common domestic offenses. But crime gravity is not just a feature of domestic criminal law. It also matters in international criminal law. The concept of gravity is enormously important at the International Criminal Court (ICC). It appears prominently in the Preamble to the Rome Statute and is
1 citations
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Journal Article•
TL;DR: In 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003 as discussed by the authors.
Abstract: On June 8, 2018, a majority of the Appeals Chamber of the International Criminal Court (ICC) reversed the conviction of former military commander Jean-Pierre Bemba for the crimes against humanity of rape and murder and the war crimes of rape, murder, and pillaging committed by his troops in the Central African Republic (CAR) between October 2002, and March 2003. The decision was clearly a disappointment for the victims of the crimes committed by Bemba’s troops, who have been waiting for more than fifteen years for a measure of justice. Significantly, the acquittal also means that sixteen years after the Rome Statute came into force, and despite increasing recognition of the prevalence of sexual violence in the situations under the jurisdiction of the court, the ICC has yet to issue a single, final conviction for the crime of sexual violence. A number of commentators have critiqued various aspects of the judgment, including the standard of review used by the Appeals Chamber. However, with few exceptions, little of this commentary has focused on the impact of the Appeals Chamber’s analysis of command responsibility under Article 28 of the Rome Statute on sexual and gender-based crimes. We argue that the majority’s decision — in particular, its analysis of the necessary and reasonable measures that a commander is required to take to avoid liability under Article 28 — lacks the kind of insight that a critical gender analysis would have offered. We conclude that absent reconsideration, the Court’s jurisprudence on modes of liability will remain a major obstacle to the successful prosecution of cases of sexual and gender-based crimes at the ICC, especially for high-ranking accused who either did not clearly order the crimes or were not physically present during the commission of those crimes.
10 citations
Journal Article•
TL;DR: In this article, the impact of European Human Rights Law on the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules has been considered.
Abstract: This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect of certain kinds of evidence on both the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The result has been to encourage a shift in the nature of both their epistemic and non-epistemic reasoning during the trial. In its most recent decisions, however, the Court appears to have drawn back from its more activist stance of setting standards of fair participation in evidentiary matters. Instead, the Court has become more fixated on the traditional common law concern with reliability. This has somewhat pushed back the potential that the ECtHR has to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.
5 citations
01 Jan 2019
TL;DR: The concept of gravity is a feature of domestic criminal law, and it also matters in international criminal law as mentioned in this paper, where it appears prominently in the Preamble to the Rome Statute and is used to define a hierarchy of crimes.
Abstract: It is widely accepted that not all crimes have the same gravity. Some crimes are simply more grave than others. Establishing a hierarchy of crimes has been difficult, however, even in domestic contexts. Nevertheless, there is now a growing body of literature addressing the relative gravity of the most common domestic offenses. But crime gravity is not just a feature of domestic criminal law. It also matters in international criminal law. The concept of gravity is enormously important at the International Criminal Court (ICC). It appears prominently in the Preamble to the Rome Statute and is
1 citations