This thesis examines the normative dimensions of the acts that constitute international crimes. It offers a conceptualisation of the normative dimensions of these acts as processes of construction... Show moreThis thesis examines the normative dimensions of the acts that constitute international crimes. It offers a conceptualisation of the normative dimensions of these acts as processes of construction and meaning making. Using the crimes of attacks on cultural property, pillage, sexual violence and reproductive violence as case studies for analysis, the thesis develops an interdisciplinary methodological approach which centralises the narratives and discourses that emerge around particular crimes as central to how they are given normative content in practice. This analysis reveals a diverse, flexible and dynamic normative picture of these crimes, which demonstrates how their normative meanings are not natural or given, but are instead produced through an ongoing process of meaning making that takes place throughout the legal process in a continuum of cases. Understanding the normative dimensions of the acts that constitute international crimes in these terms not only exposes a diversity of interests that transcends their dominant characterisations as violations of basic security rights, but also uncovers the processes through which their normative foundations are constructed and transformed internally through practice. This thesis ultimately offers a dynamic, pluralist and socially constructed account of wrong in international criminal law, which recognises the relationship between criminal wrong and transformations in the wider social and political order, and contributes to developing a more granular understanding of the nature of the representational work that international criminal justice does in the world. Show less
International prosecutors are the gatekeepers to international criminal justice. They have the sole authority to prosecute people for the most serious crimes at international courts: genocide, war... Show moreInternational prosecutors are the gatekeepers to international criminal justice. They have the sole authority to prosecute people for the most serious crimes at international courts: genocide, war crimes, and crimes against humanity. Every day, they need to decide which situations to investigate; which crimes to charge; which witnesses to call; whether to negotiate pleas; and whether to appeal. Prosecutors make theses choices, and countless others, by exercising discretion. Discretion, this research argues, is the act of reaching a reasoned decision about the appropriate course of action to pursue. Discretion translates law from an abstract set of ideas and notions into practical action. How prosecutors exercise discretion shapes what international criminal justice is, how it develops, and what it does. What have international prosecutors considered when exercising discretion, and why?This research draws upon first-hand interviews with current and former senior prosecutors at the highest levels of international courts to explore the motivations and assumptions that drive the practice of prosecuting in international criminal justice. It argues that prosecutorial discretion is informed by the different role identities that prosecutors adopt towards the institutions, people, and concepts they encounter in their work. Specifically, it claims that prosecutors have been influenced by their roles as norm performers, builders, and guardians. This research concludes that adopting a relational understanding of the prosecutorial role, in which prosecutors are understood to have different roles within different relationships, allows a nuanced understanding of what international prosecutors do and explains why decisions are made. Show less
Collective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That... Show moreCollective identity can be altered by attacking culture’s tangible components (a temple) which are often a manifestation of or a support to their intangible (spiritual practice). That identity can also be altered by attacking culture’s intangible in isolation (prohibition of spiritual practice). The research determines the extent to which international adjudicatory mechanisms have considered the causes, means and consequences of intentionally attacking culture’s tangible and intangible components. The research then brings their separate practice together. Based on treaty law, culture will be placed in a legal mould. Culture can be anthropical or natural, movable or immovable, secular or religious, tangible or intangible, regardless of terminology (cultural property, cultural heritage, intangible or tangible cultural heritage). Culture will then be placed in a judicial mould, in order to consider how natural and legal persons can invoke cultural damage in judicial proceedings. Culture is a legacy-oriented triptych made of local, national and international panels. While each panel makes sense in isolation, they are best understood when viewed together. State responsibility and individual criminal responsibility-based jurisdictions have accepted that attacking culture may be both tangible-centred and heritage-centred in terms of typology of damage. They have further recognised that the victims of such attacks can be natural persons as members of the collective or the collective as the sum of natural persons. But the victims can also be legal persons which may participate in judicial proceedings and seek reparations for harm sustained as a result of damage inflicted to their property (a museum’s building as well as its artefacts). Show less
This thesis is about the criminal law theory of international criminal law (ICL). More specifically, the thesis focuses on one area of inquiry within criminal law theory: the fundamental moral... Show moreThis thesis is about the criminal law theory of international criminal law (ICL). More specifically, the thesis focuses on one area of inquiry within criminal law theory: the fundamental moral constraining principles of criminal law (such as the culpability or legality principles).The main contribution of this thesis is to advance a method for identifying and clarifying the fundamental principles appropriate for ICL. I show that the most familiar sources of guidance are unreliable, and that efforts to find solid grounding are untenable. I propose a ‘coherentist’ method, which stipulates that we do not necessarily need a foundational ethical theory, or bedrock for beliefs. Instead, we can work productively at a middle level, using all of the available clues – including patterns of practice, normative arguments, and considered judgments. Currently prevailing understandings of the principles are contingent human constructs, but nonetheless we can make fruitful progress in applying and refining the best available constructs.The method is illustrated through an examination of command responsibility, an important but hotly contested doctrine. The inquiry shows problems in ICL jurisprudence and generates prescriptions for a law that responds fairly and effectively to a particular danger of human organization. Show less
This research offers a comprehensive analysis of the International Criminal Court (ICC) and its core legal texts from a children’s rights perspective. It examines the ICC provisions and its case... Show moreThis research offers a comprehensive analysis of the International Criminal Court (ICC) and its core legal texts from a children’s rights perspective. It examines the ICC provisions and its case law, evaluating whether these meet international children’s rights standards, particularly as regards the protection of child victims and witnesses, their participation as victims in ICC proceedings and their role as beneficiaries in reparations. The manuscript proposes recommendations that could be adopted in order to guarantee children’s rights in ICC proceedings. The research is a useful tool for practitioners as well as for academics, both in the area of international criminal law as well as children’s rights. Show less
In the era of international(ized) criminal courts and tribunals, classical concepts of international criminal law such as principles and rules of extradition and of extraterritorial jurisdiction... Show moreIn the era of international(ized) criminal courts and tribunals, classical concepts of international criminal law such as principles and rules of extradition and of extraterritorial jurisdiction have fallen into oblivion. At the same time, globalization and the establishment of international criminal jurisdictions have brought about fundamental changes of relevant attributes of the international system, justifying and necessitating renewed scholarly attention for these seemingly over-analyzed phenomena. Due in major part to these systemic changes, the non-extradition of nationals increasingly comes under fire. As a consequence, several attempts were undertaken in recent years to disallow or at least considerably limit it. Focusing on two such endeavors (under the European Arrest Warrant and in the context of the International Criminal Court), this study attempts to identify the status and the role of the non-extradition of nationals and of its counterpart, the active personality principle in international (criminal) law. Recognizing that the non-extradition of nationals cannot be easily discard, in theory or in practice, the author considers ways to adapt these long-standing features of international cooperation in criminal matters to the requirements of international criminal justice. Show less
This thesis explores the use of plea bargaining in the context of international crimes, and begins with a descriptive account of the plea bargaining that has taken place at the International... Show moreThis thesis explores the use of plea bargaining in the context of international crimes, and begins with a descriptive account of the plea bargaining that has taken place at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Panels for Serious Crimes in East Timor. The thesis then turns to a normative justification of plea bargaining. In particular, because very limited resources are available for the prosecution of international crimes, most international offenders will not suffer criminal sanctions even in situations where the political will exists to bring them to justice. Because prosecuting only small numbers of (usually high-level) offenders does not advance the penological goals associated with international criminal prosecutions, the thesis argues that conventional plea bargaining - that is, the kind of plea bargaining practiced in national jurisdictions - is justified in the international context as a means of enhancing criminal accountability. The thesis goes on to construct an innovative guilty-plea system that incorporates restorative-justice principles, such as truth-telling, victim participation, and reparations. Such a restorative-justice guilty plea process serves not only to increase the number of offenders who can be prosecuted but also to advance reconciliatory goals more traditionally associated with non-prosecutorial mechanisms, such as truth commissions and reparations schemes. Show less
