Harsh Justice for International Crimes?

deGuzman, Margaret M.

doi:10.2139/ssrn.2342218

Cited by 4 publications

(9 citation statements)

References 42 publications

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“…This is a behavior that goes beyond the simple notion of willful misconduct since it falls into the category of possible fraud. And the phenomena in question must admit the extension of the dolus towards a culpable charge (Findlay, Henham, 2016;Findlay, Chah Hui Yung, 2018;) as well as forms of strict liability (Jia, 2012;De Guzman, 2014;Aksenova, 2017;Heller, Mègret, Nouwen, Ohlin, Robinson, 2018) The crime of ecocide is not a simple crime of event, since it is accompanied by a further discontinuity which is that of the construction of the cases as event crimes. We must deal with the dangerous crimes presented in the international community, which are abstract because many times we do not know or know little about the causes and the phenomena that contrast with the events and populations that we would like to prevent.…”

Section: (Follows) Discontinuitymentioning

confidence: 99%

A Fifth core crime: Crime of ecocide as a new puzzle of the international criminal law

Stock¹

2023

YIECPL

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The protection of the environment and above all the climate and energy crisis that destroys human life is a topic of debate at an international level for the protection of ecocide. However, so far we do not have a concrete and perfect notion, given that the term ecocide was born from biological science and not from jurists. International criminal law and especially the International Criminal Court (ICC) once again takes on the leading role. A new article is needed to introduce ecocide to the other crimes already punished by the Court. The time is right and now ripe and the international necessity demands, with the help of international criminal law, to further evolve this branch of international law, to protect peoples, to punish those who destroy the environment both in the period of peace and war and above all the large companies and multinationals that are protagonists of this crime. The case is clear enough, the conduct is broad in our day but it certainly includes the mens rea a ignorance to be punished as a crime. Of course we also speak of restorative or restorative international justice for this crime because we have an ethical need and demand towards future generations to take clear positions for the protection and human life.

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Section: (Follows) Discontinuitymentioning

confidence: 99%

A Fifth core crime: Crime of ecocide as a new puzzle of the international criminal law

Stock¹

2023

YIECPL

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“…Against such a vague backdrop, penalties at the ICC are highly unpredictable and the life sentence is likely to be applied with carelessness, also considering that international crimes are often surrounded by 'rhetoric' that pushes the Court to impose extremely severe punishment. 69 Hence, it is necessary to abandon what Ashworth calls the 'cafeteria system' of sentencing, namely the approach according to which it is permissible to choose the purpose of sentencing that is considered more fitting each time, and to adopt a reasoned and consistent rationale for sentencing and punishment. 70 To accomplish such result, it is essential to avoid the uncritical and indolent adhesion to the ad hoc tribunals' case law that ICC case law has so far produced on the issue.…”

Section: Further Problems Of Sentencingmentioning

confidence: 99%

Imprisonment for Life at the International Criminal Court

Marchesi¹

2018

ULR

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some authors argue that such a penalty may violate fundamental human rights. 6 For instance, the right to a family life, freedom of expression and privacy, 7 as well as the crucial principle of rehabilitation, also risking to constitute a form of cruel, degrading and inhuman treatment that violates human dignity. 8 Moreover, the increasingly controversial nature of life imprisonment is proved by a comparative analysis of national legislation, since the number of countries that have abolished life imprisonment tout court or de facto or where life imprisonment has been censured as unconstitutional is considerable. Also among the States Parties to the Rome Statute (SPs) they are in double figures, namely 23, mainly in Latin America and Europe. 9 Furthermore, such SPs, according to Article 89 of the Rome Statute of the ICC (ICCS), 10 in Part IX about 'International cooperation and judicial assistance', are obliged to surrender persons on their territory at the request of the Court. However, this may cause some issues in those SPs that do not envisage life imprisonment in their national jurisdictions. Indeed, for example, Portugal has banned the possibility to extradite an individual if that person will face the prospect of having a life sentence imposed by the requesting state. 11 In such cases, there are various options. For instance, Colombia and El Salvador reformed their constitutions, explicitly making such a surrender possible only to the ICC. 12 Differently, Costa Rica disentangled the issue with a sentence of the Constitutional Court that reinterpreted the Constitution. 13 In a similar vein, even though the Brazilian Constitution prohibits life imprisonment, 14 such a ban has been interpreted as regarding only the relationship between the individual who committed the offence in the Brazilian territory and Brazil itself. 15 Such a concise catalogue of some of the diverse expedients enacted in different SPs that do not envisage life imprisonment clearly shows that these States had to adapt in order to avoid any tension between international obligations and national jurisdictions. In effect, the ICC system has mistakenly failed to provide for any way out for abolitionist SPs. The debate regarding this penalty is therefore almost omnipresent at the national level, thus reversing the trend of quasi-disinterest that reigns in international law. Such remarks clearly indicate that the provision and imposition of imprisonment for life should at least be carefully considered and surrounded by guarantees and safeguards for the convicted. The objective of the article is to call attention to the delicate but often disregarded issue of life imprisonment at the ICC, especially regarding how such a penalty could be imposed and reviewed, and the problems this entails. This article contends that several reforms of the ICCS and changes in the ICC's line of case law should be considered as vital in order to tackle the urgencies caused by some of the provisions of the ICC system concerning life imprisonment. In fact, notably, the...

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“…For instance, the FARC-EP dropped its extreme positions on certain matters, for example, radical redistribution of land and resources. 12 The government, for its part, recognized the need to include historic demands from the FARC-EP directed to addressing poverty, land inequality, and political participation. The negotiating parties also agreed on the importance of including the issue of illicit drugs.…”

Section: VIIImentioning

confidence: 99%

“…For Robinson, the focus should be on the process, which "… can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process." 12 For Stahn, a sentence-based theory of complementarity "is neither desirable nor manageable in all cases." He concludes that the CA is a "nuanced system of checks and balances" that requires a case-by-case assessment.…”

Section: The Role Of Sentences In the Complementarity Assessment Unde...mentioning

confidence: 99%

“…According to the Truth Commission's report, most victims lived in rural areas and were peasants or members of indigenous, black or afro-Colombian communities who lost their lives and land. 12 One of the report's conclusions is that the war in Colombia was not primarily a war between warring parties but one where civilians were also targeted. It was a selective and massive war where the 'enemy' narrative expanded to include those who allegedly, directly or indirectly, supported the opposing warring groups.…”

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Alternative criminal sanctions for international crimes in transitional contexts

Mayans Hermida

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This dissertation assessed from a legal-doctrinal, theoretical, and empirical perspective whether ‘alternative criminal sanctions’ may be ‘adequate’ for international crimes being punished in transitional contexts, according to international (criminal) law and transitional justice theory. The thesis has as a case study the sanctioning regime of the 2016 Final Peace Agreement signed by the Colombian government and the former guerrilla group, the FARC-EP. The Colombian case presents a rich context for assessing this complex issue since it is the first time a State Party to the International Criminal Court's statute has signed a peace accord that prima facie allows perpetrators of international crimes to receive non-custodial sanctions. Accordingly, the purposes of the thesis were: i) assess the conformity of alternative criminal sanctions with international law; ii) explore the theoretical justifications and goals of such sanctions for international crimes in transitional contexts; iii) empirically examine the perceptions of stakeholders from Colombia about this type of sanctions and the factors informing those perceptions. One finding is that there are no fixed standards for (in)adequacy of sanctions. However, specialised courts and bodies dealing with international crimes have identified criminal penalties consisting of prison sentences proportional to the gravity of the crime and culpability as one of the standards to determine adequacy. Nevertheless, States have great deference when determining the range and proportionality of sentences and the ICC’s penalties regime is not meant to be a standard setting for national jurisdictions. Consequently, although the primary form of punishment under the RS is imprisonment, State Parties are not obligated to adopt the same modes of punishment and range of penalties as part of their national legal frameworks. Given the nature of international crimes and the circumstances of transitional societies, existing criminal punishment goals and practices are largely unjustified in transitional contexts. Moral and practical reasons exist why the standards and principles of traditional punishment theories should not be used as standards by which the justice of the sanctions is assessed. Therefore, if criminal-law responses are adopted, any duty to punish, either at the national or international level, should be broader and contextualize the principles and standards according to the circumstances and aims of TJ. This thesis’ theoretical contribution offers a substantive account of the values, processes and outcomes that alternative criminal sanctions must fulfil to be justified and considered adequate, in line with the punishment rationales that remain valid in transitional contexts. Accordingly, the thesis proposes a third route of criminal sanctions and the re-constructive sanctions, a new conceptualization of alternative sanctions adopting restorative justice aims. Furthermore, it proposes a contextualized principle of proportionality that incorporates specific forward-looking interests of the transition in the assessment of the adequacy of sentences. The empirical contribution sheds light on the theoretical and practical promises, dilemmas, and challenges of the framework in Colombia. Such findings have larger implications for our understanding of concepts such as justice, accountability, reparation or reintegration, and for the characterisation and expressive functions of alternative criminal sanctions for international crimes in Colombia and beyond.

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Harsh Justice for International Crimes?

Cited by 4 publications

References 42 publications

A Fifth core crime: Crime of ecocide as a new puzzle of the international criminal law

A Fifth core crime: Crime of ecocide as a new puzzle of the international criminal law

Imprisonment for Life at the International Criminal Court

Alternative criminal sanctions for international crimes in transitional contexts

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