Suchergebnisse

The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first and most celebrated of a wave of international criminal tribunals (ICTs) built in the 1990s designed to advance liberalism through international criminal law. Model(ing) Justice examines the case law of the ICTY to make a novel theoretical analysis of the structural flaws inherent in ICTs as institutions that inhibit their contribution to social peace and prosperity. The book proposes a seminal analysis of the structural challenges to ICTs as socially constitutive institutions, setting the agenda for future considerations of how international organizations can perform and disseminate the goals articulated by political liberalism.

The Chambres Africaines Extraordinaires (CAE), ad hoc chambers operating under the auspices of the Dakar municipal courts, were constructed to try Hissène Habré. Habré led Chad from 1982 until 1990, when he was deposed by his former second in command, Idriss Déby. Déby remains the head of state of Chad today and has long agitated to recognize Habré's (and only Habré's) misdeeds and punish him. In targeting Habré, the CAE was designed to appease Chadian calls for justice (from Habré's victims, on one hand, and the Déby regime, on the other), resolve Senegal's impasse over the legality of Habré's culpability and allow the African Union to meet its leadership obligations. To this tall order, the CAE was required to exercise legitimate judicial authority in the contested sphere of international criminal law (ICL), where content is pluralist and political. Thus the CAE, an institution created by compromise between Chad, Senegal, the African Union and interested donor states, came into existence itself compromised, because creating an institution to try an individual is a backward application of the rule of law and challenges central notions of justice. In the past 30 years, ICL-practicing institutions have developed an extensive, though uneven, jurisprudence regarding complicity (the liability levied against those who do not perpetrate crimes themselves). Habré ran a repressive state that killed and injured tens of thousands of Chadians, and his crimes were understood as those accomplished by the leader of an illiberal state. In its 2016 judgment, however, the CAE found Habré indirectly as well as directly culpable for each of categories of crime charged. This included a controversial finding that Habré, personally, had raped Khadija Hassan Zidane (this finding was overturned on appeal for procedural reasons). This article examines the CAE's finding of Habré's culpability for war crimes, crimes against humanity and torture. The article shows that the CAE applied a novel construction of liability under ICL and argues that it did so in order to strengthen its authority and legitimacy. By so doing, the CAE has made a significant addition to the field of ICL. This article explores the CAE's application of joint criminal enterprise (JCE) to consider how the internationally formulated doctrinal standard is reshaped by CAE practice.

My project uses the case study of the ICTY and reconciliation in the Balkans to address the larger topic of the capacity of international criminal tribunals (ICTs) as transitional justice mechanisms. I argue that the ICTY operates under the (flawed) received wisdom of the IMT at Nuremberg, what I term the international criminal justice template. This template accords three transitional justice functions for ICTs beyond (and in conjunction with) their central judicial aim of adjudicating cases: as (1) articulators of progressive criminal law (2) historians and (3) reconcilers or storytellers. My examination of the ICTY through each category illustrates that obstacles to the ICTY's role as a transitional justice mechanism are structural, and relate to the absence of a discursive loop between sovereign and governed. This discursive loop, present at domestic law, accounts for the capacity of domestic courts to perform the tasks identified by law and society scholars as central to courts, namely the capacity to act as constitutive social agents as well as the capacity to exert social control. At the international level, this capacity is interrupted. The dissertation calls for new scholarship and the development of international law and society studies, in order to better theorize and understand the structural and theoretical constraints governing the establishment of legitimacy for international criminal courts.

Introduction: This introduction provides the rationale and theoretical anchoring for the volume and its focus on aparadigmatic cases. It argues that practice and scholarship in paradigmatic transitional justice contexts built a field that conceptualises the state as a partner in the transition. However, due to the field's expansion to aparadigmatic justice contexts, this assumption and its associated binary concepts cannot inform analysis. Instead, as demonstrated by the present volume, transitional justice in aparadigmatic contexts offer different intentions, responses, and experiences of transitional justice. Where the state is not a partner, it may ignore, refuse, resist, and fight, while giving way to other actors and justice articulations.
The chapter first conceptualizes transitional justice as the potential for recognition, accountability and disruption. The chapter then discusses the expansion and recent standardisation of the field, whereby transitional justice has become four specific types of mechanisms: trials, truth telling, reparation and institutional reform. Thereafter it analyses the problem of the state, particularly how the field has assumed a transitional state, a partnering state. In the next section it offers a typology of transitional justice contexts that cover both paradigmatic and aparadigmatic contexts and ranges from contexts of ongoing conflict to consolidated democracy in formerly imperial states. This range covers seven different types of transitional justice context organized on the basis of the status of its political authority. Lastly, it maps the volume's chapters onto the typology and briefly introduces each of them.

AbstractThe purpose of this article is to advocate for new methods of studying international law. Hissène Habré, former President of Chad, was convicted by a hybrid tribunal in Dakar. Our book on this judicial process (The President on Trial: Prosecuting Hissène Habré, Oxford University Press, 2020) develops a novel empirical format of first-person testimonials, followed by expert analyses, to trace and contextualize the decades-long story of attempts to bring Habré to justice. The empirical materials collected in our book demonstrate that the Habré trial challenges a linear distribution of power from international (global) actors to local, demonstrating rather a series of horizontal relations between the local and international. Based on this research experience, the article lays out the method we developed. It facilitates an assessment of the legal and political impact of court decisions, routines and broader bureaucratic politics through which the practices of judging are constructed. "Justice" does not speak with one voice; it is made up of multiple actors with different professional interests and personal goals. It is also impacted by power dynamics and by the structure of the institution, including by institutional routine and legal bureaucracy.