The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.
Although the International Criminal Court (ICC) has been heralded as a success story for gender justice, in practice prosecutions of sexual and gender-based crimes (SGBC) have often ended with acquittal at the court. Gender studies in international relations explain the lack of successful SGBC prosecutions by looking to the influence of older gender biases in international law, which preclude the successful implementation of the novel Rome Statute provisions criminalizing SGBC. This article suggests that “forgetting” the gender justice norm insufficiently explains the outcome of the ICC's SGBC prosecutions. The article argues that ICC judges “remembered” another norm of criminal justice, long forgotten in international trials – strict compliance with the personal culpability principle – which has resulted in tension between different visions of justice in the court's practice: delivering substantive justice for SGBC victims v. safeguarding the defendant's rights by upholding criminal law principles.
The icc has employed the ‘control-over-the-crime’ theory, which treats those who ‘control’ the commission of a crime as principal perpetrators. Legal academics and icc judges have criticised the Court’s reliance on that theory for producing unsound legal reasoning. This article engages with the question from a novel perspective, that focuses on the institutional factors affecting the adoption and reform of legal theory. Transplanting Barnett and Finnemore’s concept of the ‘pathologies’ of international organisations to the field of international law, the article argues that reforming the rules for assessing criminal responsibility is a challenging endeavour, even when those rules have exhibited significant deficiencies. Reform is possible, but it is more likely to be incremental rather than revolutionary. The findings also bear implications for international criminal justice more generally, as they suggest that the answer to delivering sound judgments is not improving criminal law theory but appreciating the peculiarities of each case.
Establishing individual criminal responsibility for mass atrocities is the foundational principle of international criminal justice, but this process is highly complex, and is accompanied by political and legal dilemmas about its operation. The book examines the drafting, interpretation, and application of the rules for assessing individual criminal responsibility as those rules emerge from the intense contestations among judges, lawyers, and academics within the legal field. Focusing on the International Criminal Court (ICC), the book provides a rich analysis of the international debates around questions of criminal responsibility by interrogating formal legal documents and legal scholarship alongside more candid accounts (interviews, memoirs, minutes). These debates are of key importance for international criminal law and global justice because how criminal responsibility laws are construed in practice determines which conduct merits punishment and, ultimately, demarcates the boundaries of what are considered the 'gravest' acts that 'shock' humanity.
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