But, as he notes (ibid.) I recommend it to scholars and lecturers who wish to be updated to the contemporary development on sovereign/state immunity. Read reviews from world’s largest community for readers. It is also present in substantive international criminal law. Prof. Stephen P. Kerr in his academic paper entitled “Dynastic Law” states that “The United States of America refused to recognize the 1939 Soviet usurpation of the three Baltic Republics of Estonia, Latvia, and Lithuania. Or, as Bruce Broomhall comments, the idea that certain acts ‘undermine the international community’s interest in peace and security and, by their exceptional gravity, “shock the conscience of mankind”’,28 and thus are not the concern of one state alone. First, it considers the immunity of State officials from the exercise of foreign or international criminal jurisdiction. ISBN 157105295X. The State-centric theory of international law on the one hand, and cosmopolitanism on the other, treat the concept of State sovereignty from different perspectives, with the former emphasising sovereign interests, sometimes at the expense of international criminal justice purposes, and the latter prioritising cosmopolitan aspirations over the respect for State sovereignty. After a while, rhetoric has a habit of becoming at least partially reified. Were this trend to extend widely, the resulting enhancement of the capacity of national law to prosecute international crimes, with any additional incentive provided by the jurisprudence of the ICC, could lay the foundations for a significant increase in the number and credibility of national proceedings against international crimes.69. This leads to some uncomfortable conclusions: for example, one could speculate that if the Tribunal had issued indictments against NATO personnel over incidents in the Kosovo war, it might have seriously undermined Western support for the Tribunal and possibly compromised the whole project of international criminal justice, including the International Criminal Court. State Sovereignty and International Criminal Law, edited by Morten Bergsmo and Ling Yan, brings together two recent issues of international law: the rise of international criminal law as a building block in the nascent constitution of the international legal order and the increasingly active participation of China in international law. This was one of the bases upon which the President of the ICJ, Gilbert Guillaume, opined that to accept universal jurisdiction in absentia would ‘be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agent for an ill-defined ‘international community’.41 Guillaume’s point might be countered with a claim that all states remain, in spite of modern imbalances of power, equally sovereign,42 thus legally with equal jurisdictional authority. This was because it was certain by the late stages of the Rome conference, if not before, that some states were going to oppose the Rome Statute whatever the outcome. The journey from the Hague to Rome was long and arduous; it is to be hoped that the journey back to the Hague will be shorter, less encumbered, and ultimately successful. Others have gone further, and claimed that the TRC was a flawed institution designed to serve the interests of a new political elite rather than the victims.86 Either way, it is by no means clear that the TRC has led to reconciliation in South Africa, or contributed to the social justice it was intended to foster. To take the view that sovereignty is pretty much absolute and unchangeable tends to lead to a dim view of the prospects of international criminal law.9 Thus Andrew Clapham, in an excellent chapter in Justice for Crimes against Humanity10 tells us ‘Sovereignty as such is a changing notion which adjusts to the developing nature of international law . With the exception of Sadat’s Transformation, there is a tendency in the works under review here to downgrade detailed discussion of issues of substantive international criminal law to a secondary level. They are the principal enforcers of … This approach to sovereignty, although not absent in some of the debates in Rome, for example on the definitions of crimes, does not reflect how most states and scholars see sovereignty. But it is sovereign States that create and become parties to international criminal law treaties and jurisdictions. They also relieve us of the more material responsibilities too. W. Friedmann, The Changing Structure of International Law (1964). The works considered here, understandably, tend to take the latter view of sovereignty and the international legal order. the prescriptive jurisdiction of the international community and the adjudicative jurisdiction of the Court are premised on transformative redefinitions of those principles in current international law. See, e.g., J. E. Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Criminal Law (2004) at 5–6. So the ICC, perhaps paradoxically, also owes its existence to state sovereignty. (at 131). Aceves and Hoffmann, in Justice, however, in relation to crimes against humanity, treat the Rome Statute’s provision on crimes against humanity as the most authoritative interpretation of crimes against humanity in international criminal law’ (at 245). . As McCormack points out in Justice, the actions (or lack thereof) of national trials are why the ICC has been considered necessary (at 107). To begin with issues of theory, as a number of the works here accept, there are two views of sovereignty. By combining the central themes of state sovereignty and international criminal law, the Published under the Transnational Publishers imprint. Although international criminal law does involve some challenges to sovereignty, it also needs, and in some ways empowers, that sovereignty too. Suffering: Re-examining Sovereignty and Human Rights Through the Lens of Iraq’, 13 EJIL (2002) 243. International Justice, at 10, see also at 44–51. See R. A. Wilson, The Politics of Truth and Reconciliation of Africa: Legitimising the Post-Apartheid State (2001). See Jennings, ‘Sovereignty and International Law’, in G. Kreijen et al. It is true that the crimes are said, in Articles 6(1), 7(1) and 8(2) to be defined ‘for the purpose of this Statute’, but Article 10 of the Rome Statute provides that ‘nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’. Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), ICJ List 121, 14 February 2002, Separate Opinion of President Guillaume, para. As has already been noted, the relationship between international criminal law and state sovereignty is complex, and perhaps often misunderstood.27 We must accept that international criminal law does affect state sovereignty (the law on crimes against humanity and genocide in particular) by prohibiting behaviour perhaps previously outside of the purview of international law. However, as a number of the authors recognize, international criminal law operates in a political, as well as a legal sphere, so practical opportunities to exercise that jurisdiction are not equally distributed.43 Perhaps most astringently in relation to national jurisdiction, Broomhall asserts that, It would be one thing for France to prosecute a former Head of State of Haiti before its domestic courts, and quite another for the Marshall Islands to prosecute a former President of the United States. Antonio Cassese, as noted by Bruce Broomhall in his extremely useful, if rather short, book, has made it clear that in his view ‘either one supports the rule of law, or one supports state sovereignty. This is a review of five recent works which deal with international criminal law. By engaging the laden concept of ‘state sovereignty’, the Veuillez réessayer. See, e.g., A. P. Rubin, Ethics and Authority in International Law (1997). Although he is more pessimistic when he qualifies himself by saying that despite the Rome Statute, ‘[d]omestic trials will remain fraught with all of the political, social and resource difficulties that have always accompanied them, and the resulting imperfections will be slow to improve’ (at 102–103). The obligations undertaken by states parties to the Rome Statute, to cooperate with the Court and to, essentially, submit their judicial processes (or lack thereof) to external oversight also have implications for sovereignty. The final work, Justice, Humanity and the New World Order, by Ian Ward, Professor of Law at the University of Newcastle, is a disquisition on the role of sensibility in jurisprudence. A. Zimmern, The League of Nations and the Rule of Law 1918–1935 (1936), at Ch. This is not surprising, for if State sovereignty ... is often blamed for the violent condition of world affairs, international governance is not necessarily looked upon as a superior alternative. Désolé, un problème s'est produit lors de l'enregistrement de vos préférences en matière de cookies. It is easy to agree with the conclusion that the Rome Statute reflects a minimum content of international criminal law. The ICC and related developments may in fact contribute to the emergence of such a culture, although present signals are not uniformly positive (at 3). This is what he describes as a ‘new legitimation environment’ in which states operate (at 5), one in which they are increasingly under pressure from NGOs and their electorates to justify their decisions. ), The Politics of International Law (2004). The only serious criticism that can be made of the work is that, as we have had cause to note already, the number of thoughts and issues packed into a fairly short work mean that some ideas are not as fully developed as they could have been. Or as Georg Schwarzenberger put it, states are like Schopenhaur’s hedgehogs, huddling together in the cold, but repelled by each other’s spines.20 At the least, we should not be quick to assume that the international order has fundamentally changed, without looking at the evidence closely. 'State sovereignty' is often referred to as an obstacle to criminal justice for core international crimes by members of the international criminal justice movement. Une erreur est survenue. What naturalism. However, Broomhall is not entirely downbeat, he identifies a metajuridical reason for hope. Of the five, only Ward’s is generally critical of international criminal law, but the fact that this issue is of interest at all in a more general theoretical work, alongside the fact that these books represent only part of the ever-increasing literature on international criminal law, shows that the topic is no longer the preserve of a small number of scholars publishing for a small audience. Although this may sometimes be an adequate description of reality, the relationship between sovereignty and international criminal law is more complex, and we are beginning to see this coming through in more sophisticated international criminal law scholarship. In dealing with universal jurisdiction, however, we also have to take into account the claims that universal jurisdiction is, albeit notionally available to all, in practice a tool of the powerful. Furthermore, the account would then expand on the role of the ICC in acting as a repository of those ideas, and persuading states, through the incentive to them to adopt domestic legislation, and oversight of prosecutions, to prosecute international crimes. A whiff of sulphur permeates the air. What the ICC does is provide a mechanism where states are actually encouraged to use their sovereignty in this way.36 This effect is not necessarily limited to states parties.37 Still, the extent to which the ICC can provide such an incentive is not helped by what a number of the authors here accept: that the cooperation regime for the ICC is not strong, owing to an unwillingness of states to go too far in relation to their perceived sovereign prerogatives.38. The imprisoning of individual soldiers and politicians does not rebuild schools, hospitals and roads. The book challenges one-sided views that State sovereignty necessarily stands in the way of criminal justice for core international crimes, recognizing that criminal justice for atrocities depends entirely on the ability of States to act. As Mark Lattimer and Phillipe Sands put it in Justice ‘the gaps in that protection are sufficiently large to allow much blood to flow in between’ (at 11). The second is the extent to which states may begin, by doing this, to inculcate the values of international criminal law and normalize the prosecution of international crimes. We will return to this in a moment. As the Canadian implementing legislation for the Rome Statute makes clear, ‘crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law’.58 But there are also problems with getting to this result the way that Sadat does. I give it 5 star without reservation. It also takes us to the crux of Broomhall’s argument that the rule of law, insofar as it requires ‘consistent, impartial practice . Ward has a point about selectivity, however, he understates the fact that although the US has not accepted the Rome Statute, 100 states have, and thus have accepted that they ought to prosecute their own nationals, as well as showing they believe the law ought to be applied to others. Indeed the books reviewed here can be seen as belonging to the second wave of post-Cold War international criminal law scholarship.1 They also represent a more highly developed, worldly-wise approach to international criminal law than some of the earlier literature in the field.2. compatible’.5 Although Cassese has both the understanding of legal theory and the practical experience that makes such a view carry considerable weight, it is worth investigating the matter a little further. Later though, through the existence of the ICC as an embodiment of the ideals of international criminal law, and state interactions with it, states would internalize the ideals, and simply prosecute international crimes on the basis that they ought to be prosecuted per se, without regard to the concern that the ICC might otherwise do it. Indeed, and it is notable that the approach taken to the ambit of criminal responsibility differs quite significantly between ‘safe’ and ‘unsafe’ tribunals, i.e., those which could exercise jurisdiction over their creators and those that cannot.52 It is a pity that on this, as on a number of points, Broomhall makes highly perspicuous assessments, but does not really expand upon them as much as might be hoped. 'State sovereignty' is often referred to as an obstacle to criminal justice for core international crimes by members of the international criminal justice movement. International law, including the principle of non-intervention in another state’s internal affairs and the principle of sovereignty, applies to these cy ber operations. It is simply one that many people (this author included) support. State Sovereignty vs. International Law A Look at Kenya in the International Criminal Court Shana Le 25 November 2014 IR 7300 A: Ethical Issues in IR Dr. Aaron Tyler Le, 1 Imagine a world where the United States had its authority and jurisdiction to try its own criminal cases stripped away from her. To use Steven Ratner’s phrase in his ‘The Schizophrenias of International Criminal Law’, 33 Texas International Law Journal (1998) 237. For a brave attempt at showing that international criminal law does cover such activity, see Marcus, supra note 48. Here see also Lattimer and Sands, ‘Introduction’, in Justice at 3; Sands, ‘After Pinochet: The Role of Domestic Courts’, in P. Sands (ed. Two of them are monographs concentrating on the International Criminal Court and its relationship to international law more generally. Thus international criminal law, by accepting universal jurisdiction and limiting material immunities empowers states, enabling them to expand their sovereign rights to events beyond their borders, through the assertion of such a broad form of jurisdiction. The difficulties here can be traced to Bodin’s statement that sovereigns who make the laws cannot be bound by the laws they make (majestas est summa in cives ac subditos legibusque … See Aceves and Hoffman, ‘Pursuing Crimes against Humanity in the United States: The Need for a Comprehensive Liability Regime’, in Justice, at 240. There is a very useful section in International Justice on this point, however, at 41–51. Criminal justice for atrocities depends entirely on the ability of States to act. Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72, 31 May 2004, at paras 17–51. (at 13), Ward hopes that sensibility is the way. Achetez neuf ou d'occasion SS Wimbledon (France, Italy, Japan and UK v Germany) PCIJ Rep. Series A No. This is one of the few flaws in what is a sophisticated and well-rounded work. The first is the extent to which states which are subject to the Rome regime (be it by becoming parties, or by having personnel subject to its jurisdiction) are likely to begin to prosecute their own nationals to avoid the ICC stepping in. Thus, the codification process was fated to produce a text that represented a set of political compromises, rather than a new set of progressive norms criminalizing behaviour on a broad scale.53, Like Broomhall, Sadat also highlights the interplay between legal argumentation on how specific the substantive criminal law provisions in the Rome Statute had to be and the extent to which states were prepared to allow the ICC to judge their own nationals (see, e.g., at 174–182). This was supported in Prosecutor v Tadić, Judgment, 15 July 1999, IT-94-1-A, parak. This is consistent with the approach taken in establishing international criminal tribunals since Nuremberg’. K. Jaspers, The Question of German Guilt (2000). State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court - Volume 19 Issue 4 - FEDERICA GIOIA. Lattimer, Mark and Philippe Sands (eds). International law is a system of freedom- countries can act in any manner which is not expressly prohibited. Why keep talking about all that? Ibid., at 30. Vous écoutez un extrait de l'édition audio Audible. Ling, Yan (Law teacher) Description xi, 281 pages ; 25 cm. The drafters at Rome were for the most part very careful to stay within the bounds of established custom. They are … The Court also stated that France and Turkey had concurrent jurisdiction over cases arising abroad on a French flag vessel on the high seas. Indeed, there may be empirical reasons for the argument that resort to criminal law is not a first, but a last resort, and that having tried trusting humanity, we have come to seek to limit its destructive urges. I would like to agree. Without sovereignty there are no courts, and without courts there are no prosecutions. See Cryer, ‘Human Rights and the Question of International Courts and Tribunals’, in M. C. Davis, W. Dietrich, B. Scholdan and D. Sepp (eds), International Intervention in the Post-Cold War World (2003) 60, at 65–66. Transformation, at 261. The prohibition of aggression protects states by criminalizing armed violations of their sovereignty.46. This is the work of a serious and talented scholar, who also has an excellent feel for the subject. This is part of an argument that the Rome Statute provides a ground floor for definitions of crimes. The US has used international legal arguments to claim that the ICC is flawed, see, e.g., Bolton, ‘The Risks and Weaknesses of the International Criminal Court from America’s Perspective’, 41 Virginia Journal of International Law (2000–2001) 186. Merci d’essayer à nouveau. Secondly, the theme of the anthology is State Sovereignty and In-ternational Criminal Law. This would provide a defence against those who claim that if the Security Council were to make the law applicable to conflicts in non-party states (as it has now done in relation to Darfur, Sudan, in Resolution 1593) there could be a violation of the nullum crimen principle.55. See also International Justice, at 42–43. International criminal lawyers often see sovereignty as the enemy of international criminal law, though frequently failing to discuss in any depth the nature and malleability of sovereignty. Despite all their merits, however, the volumes assessed here also show that international criminal law scholarship has not yet fully come to grips with the interrelationship of international criminal law and sovereignty. Its distinguished authors are primarily of Chinese descent, contributing six out of the eight substantive chapters in the anthology. The two are not . This should come as no surprise, as can be seen from the double-structured nature of the argumentation in the Lotus case, and the commentary it inspired.39 To assert jurisdiction over an action is to exercise a form of sovereignty over it, and where the jurisdiction being asserted is extraterritorial, this may cause consternation in the state where the offence occurred. Although most international criminal lawyers would accept that in the case of international crimes this is right, it also shows that sovereignty is not always the enemy. As far back as the North Sea Continental Shelf case it was accepted that the drafting process of treaties, and treaties themselves, can have a developmental role in custom.60 There is no reason not to believe that this happened here. A shield against effective implementation of such crimes recommend it to scholars and lecturers who wish to be one the! 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