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CIAO DATE: 01/03
2002 (Volume 13 Issue 3)
The Sensibility and Sense of International Criminal Law by Immi Tallgren
Intolerable large-scale crimes seem to render the justification of international criminal justice self-evident. It just feels right. But why? This article exposes international criminal justice to the 'why' question by applying the most frequently evoked models of the working mechanisms of rational, utilitarian, enlightened criminal justice. It demonstrates that the basic pre-conditions for their effective working according to the prevailing theories do not exist or get fulfilled. Regardless of the common outspoken statements referring to utilitarianism, the real answers to the 'why' question seem to echo the retributivist tone of justification. Everybody knows that prevention does not work, even if we hope it might one day. Everybody knows, but the knowledge has no consequences. Prevention is cited simply because of the void of alternatives, the rational ones. What would be left if the international criminal justice system were to be stripped of its utility and rationality? International criminal justice comes close to a religious exercise of hope and perhaps of deception. The ideology of a disciplined, mathematical structure of responsibility serves as a relieving strategy to measure the immeasurable. The seemingly unambiguous notion of guilt creates consoling patterns of causality in the chaos of intertwined problems of social, political and economic deprivation surrounding the violence. The article concludes with a question: Could the rational and utilitarian purpose lie elsewhere than in the prevention or suppression of criminality?
The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm by Daniel H. Joyner
NATO's action within the territory of the Federal Republic of Yugoslavia (FRY) in 1999 continues to pose significant and as yet largely unanswered questions to the international legal community with regard to the normative value of existing international law and institutions governing the area of international use of force. This article examines the actions of NATO against the backdrop of traditionally held and arguably evolving interpretations of international law in this supremely important area and concludes that, while some, including Professor Michael Reisman, have argued to the contrary, NATO's actions in the FRY in the spring of 1999 were both presently illegal and prudentially unsound as prospective steps in the evolution of customary international law. The article argues that, instead of working towards the creation of a new custom-based legal order to cover such humanitarian necessity interventions, proponents of the same should rather expend greater energy, and endeavour to achieve more substantial commitment of resources, in efforts to work within the established legal order, with the United Nations Security Council as the governing body thereof. It argues further that, with simple and easily accomplished changes to the procedures of the Security Council, such persuasive efforts will be more likely to bear productive fruit than they have hitherto been.
Time for a United Nations 'Global Compact' for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration by Ernst-Ulrich Petersmann
The 'Global Compact', launched by UN Secretary-General Kofi Annan in 1999, calls upon business to 'support and respect the protection of international human rights within their sphere of influence and [to] make sure their own corporations are not complicit in human rights abuses'. This article calls for a complementary 'Global Compact' between the UN and UN specialized agencies, as well as with other worldwide public organizations such as the World Trade Organization (WTO), so as to integrate universally recognized human rights into the law and practice of intergovernmental organizations, for example by requiring them to submit annual 'human rights impact statements' to UN human rights bodies and to engage in transparent dialogues about the contribution by specialized agencies to the promotion and protection of human rights. The globalization of human rights and of economic integration law offers mutually beneficial synergies: protection and enjoyment of human rights depend also on economic resources and on integration law opening markets, reducing discrimination and enabling a welfare-increasing division of labour. As a corollary, economic, legal and political integration are also a function of human rights protecting personal autonomy, legal and social security, peaceful change, individual savings, investments, production and mutually beneficial transactions across frontiers. The proposed 'integration approach' differs from the 1945 paradigm of 'specialized agencies' and state-centred international law focusing on the 'sovereign equality' of states rather than on human rights and democracy. It takes into account the regional experiences in Europe, that integration law enhances not only economic and social welfare but also the rule of law, the protection of human rights and democratic legitimacy at national and international levels of governance. As in European integration law, human rights should be recognized in global integration law as empowering citizens, as constitutionally limiting national and international regulatory powers, and as requiring governments to protect and promote human rights in all policy areas across national frontiers. Global integration law (e.g. in the WTO) should no longer focus one-sidedly on liberalization. It should also accept shared responsibility for the social adjustment problems of the global division of labour and for governmental obligations to protect and promote human rights in the economy no less than in the polity.
Human Rights in the WTO: Whose Rights, What Humanity? Comment on Petersmann by Robert Howse
The relationship between human rights and market freedoms is far more complex than Petersmann acknowledges. Although Petersmann relies heavily upon notions such as constitutionalism and democratic decision-making, the terms are ill-defined and their application unconvincing. The author engages with Petersmann's contention that governments would contemplate greater international market intervention to promote social goals and challenges his interpretation of several of the leading WTO decisions.
The Interplay Between the Transfer of Slobodan Milosevic to the ICTY and Yugoslav Constitutional Law by Konstantinos D. Magliveras
The trial of Slobodan Milosevic opened before the International Criminal Tribunal for the Former Yugoslavia in February 2002. Milosevic is accused on 66 counts of crimes against humanity, war crimes and genocide allegedly committed in Kosovo, Bosnia and Croatia. The present article examines one particular aspect of the Milosevic trial, namely, his apprehension by the Serb authorities and transfer to the Tribunal in June 2001. Milosevic himself has so far contested unsuccessfully the legality of these actions. The author attempts to determine whether these actions breached the constitutional law of the Federal Republic of Yugoslavia and of the Serb Republic. Moreover, since Yugoslavia has a clear obligation under international law to cooperate fully with the Tribunal, the article, based on the experience of other European federal states, suggests a workable solution to the constitutional obstacles faced by Yugoslavia.
Breaches of EC Law and the International Responsibility of Member States by Gerard Conway
The role of subsystems or special regimes, of which the European Community (EC) has been cited as the most striking example, within public international law has been a focus of attention of academic writing in recent years. Such regimes, strictly understood, exclude the operation of secondary rules of general international law, substituting their own rules. As well as providing a useful descriptive framework for certain aspects of international law, subsystems analysis poses the issue of the effect on the overall efficacy of the international law system of such regimes. Applied to the EC, use of the term 'subsystem' as strictly understood is debatable. A number of scenarios indicate the potential applicability and need for the regime of state responsibility of general international law. First, a member state may be liable in international law for breach of EC law where that EC law is an international agreement to which the Community is a party. Secondly, Simma's 1985 conclusions concerning the EC as a self-contained regime, assessed in light of recent developments in EC law on state liability, arguably remain applicable, suggesting that international responsibility for breaches of EC law by member states, in extremis, cannot be absolutely excluded.
Rape as a Crime in International Humanitarian Law: Where to from Here? by Rosalind Dixon
This article examines recent developments in the prosecution of crimes of sexual violence under international law. The author suggests that these developments are driven by the dual imperatives of a feminist 're-order' project - which seeks to reconstitute the international order free of sexual violence - and the imperative of recognition for victims of crimes of sexual violence. She argues, however, that by itself, a system of international criminal prosecution will be inadequate to meet the imperative of recognition for victims. She relies in this respect on research on the experiences of victims in national criminal justice systems, on the growing trend towards victims of crimes of sexual violence seeking redress in 'transnational' civil forums, and an analysis of the constraints of the international prosecution process. The article goes on to argue that the concept of international 'justice' for crimes of sexual violence needs to be expanded, beyond even those embodied in the ICTY or Rome Statutes, to include primary and not simply ancillary civil forums for the granting of 'restitution'. The author proposes a system of international victims' compensation, and makes preliminary suggestions for the features such a system should have. She further argues that, ultimately, this system will produce a parallel jurisprudence of 'recognition' which will eventually 'act back' on the discourses of international criminal prosecutions and the imperatives of an order/re-order project.
Decisions of the Appellate Body of the World Trade Organization by Joel Trachtman
Case Concerning the Arrest Warrant of 11 April 2000 by Kevin R. Gray
Book Review — A World Made New. Eleanor Roosevelt and the Universal Declaration of Human Rights Reviewed by A.W. Brian Simpson
Book Review — The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 by Rein Müllerson