The Politics of International Criminal Law

407 Pages·2020·1.883 MB·English

by  Holly Cullen, Philipp Kastner, Sean Richmond

The Politics of International Criminal Law
Studies in International
Criminal Law
Editor-in-Chief
Caroline Fournet (University of Groningen, Netherlands)
Editorial Board
Diane Marie Amann (University of Georgia, USA)
Kai Ambos (University of Göttingen, Germany)
Anabela Atanásio (University of Cologne, Germany)
Mohamed Badar (University of Northumbria, UK)
Ilias Bantekas (Hamad Bin Khalifa University, Qatar)
Bing Bing Jia (Tsinghua Law School Beijing, China)
Roman Boed (The Hague, Netherlands)
Michael Bohlander (University of Durham, UK)
Neil Boister (University of Canterbury, New Zealand)
Mohamed El Zeidy (The Hague, Netherlands)
John Hocking (The Hague, Netherlands)
Annika Jones (University of Durham, UK)
Stefan Kirsch (Frankfurt, Germany)
André Klip (University of Maastricht, Netherlands)
Claus Kress (University of Cologne, Germany)
Adel Maged (Cairo, Egypt)
Anja Matwijkiw (Indiana University Northwest, USA)
Guénaël Mettraux (University of Amsterdam, Netherlands)
Tomoya Obokata (Keele University, UK)
Alain Pellet (Université Paris Nanterre, France)
Victor Peskin (Arizona State University, USA)
William Schabas (Middlesex University, UK)
Wolfgang Schomburg (Berlin, Germany)
Alette Smeulers (University of Groningen, Netherlands)
Carl-Friedrich Stuckenberg (University of Bonn, Germany)
volume 2
The titles published in this series are listed at brill.com/sicl
The Politics of International
Criminal Law
Edited by
Holly Cullen, Philipp Kastner and Sean Richmond
leiden | boston
Cover illustration: Untitled watercolour, 2011, Edward Matwijkiw (1937–2012), reproduced with kind
permission of the family.
Library of Congress Cataloging-in-Publication Data
Names: Cullen, Holly, editor. | Kastner, Philipp, editor. | Richmond, Sean,
1978- editor.
Title: The politics of international criminal law / edited by Holly Cullen,
Philipp Kastner and Sean Richmond.
Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] |
Series: Studies in international criminal law, 2666-903X ; volume 2 |
Includes index.
Identifiers: LCCN 2020041651 (print) | LCCN 2020041652 (ebook) | ISBN
9789004372481 (hardback) | ISBN 9789004372498 (ebook)
Subjects: LCSH: International criminal law--Political aspects.
Classification: LCC KZ7050 .P653 2021 (print) | LCC KZ7050 (ebook) | DDC
345--dc23
LC record available at https://lccn.loc.gov/2020041651
LC ebook record available at https://lccn.loc.gov/2020041652
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
ISSN 2666-903X
ISBN 978-90-04-37248-1 (hardback)
ISBN 978-90-04-37249-8 (e-book)
Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi,
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Contents
Acknowledgements  vii
Notes on Contributors  viii
The Politics of International Criminal Law  1
Holly Cullen, Philipp Kastner and Sean Richmond
Part 1
The Politics of International Criminal Law in Theory and
Practice
1 Bridge over Troubled Water – A Semantic Approach to Purposes and
Goals in International Criminal Justice  27
Alexander Heinze
2 The Politics of International Criminal Justice: Hegemony and Humanity
at the International Criminal Tribunal for the former Yugoslavia  56
Shannon Maree Torrens
3 Constructing International Criminal Justice across Time and
Space  85
Emma Lauren Palmer
Part 2
Challenges to the International Criminal Court through African
Interactions
4 The Office of the Prosecutor: Seeking Justice or Serving Global
Imperialism?  117
Shannon Fyfe
5 The Law and Politics of Norm Conflict: Immunity versus Accountability
and the Case of Al-Bashir  143
Catherine Moore
vi Contents
6 The Lost Kenyan Duel: The Role of Politics in the Collapse of the
International Criminal Court Cases against Ruto and Kenyatta  165
Daniel M. Mburu
Part 3
International Criminal Law and Politics of Culture, Emotions
and Voice
7 Prosecution for the Destruction of Cultural Property: Significance of the
al Mahdi Trial  199
Lara Pratt
8 Emotions in International Criminal Law: Reckoning with the
Unknown  230
Josh Pallas
9 The Politics of Reparations at the International Criminal Court  255
Miriam Cohen
Part 4
Limits of International Criminal Law: International and
National Security
10 Private Military Security Companies: Addressing Accountability – A
Suggested Model for Control  279
Pauline Collins
11 Counterterrorism and National Security: The Domestic/International
Law Interface  314
Vincent-Joël Proulx
Index  391
Acknowledgements
A book such as this one is the product of the efforts of many, including our
chapter authors, who worked collaboratively with us to ensure that their con-
tributions engage insightfully with the theme of the book. We hereby extend
our gratitude to each of them. Behind the listed editors and authors, a number
of people have made important contributions to ensuring the achievement of
this book, and we wish to acknowledge them here.
As editors of this book and organisers of the 2016 Australian International
Criminal Law Workshop where the chapters herein were originally presented,
we have benefited from the support and assistance of a number of institutions
and people at the University of Western Australia and beyond. The Workshop
was supported by a conference grant from the UWA Law School, and by the
Perth USAsia Centre. We thank our Law School colleagues Dominic Dagbanja,
Juan He and Emily Camins, who chaired Workshop sessions, and Tamara Tu-
lich, who contributed to our plenary panel on national security, which featured
not one, but two, former Ministers of Defence: The Honourable Kim Beazley,
AC, and The Honourable Stephen Smith. The Honourable Justice Kevin Parker
AO, formerly Judge of the International Criminal Tribunal for the Former Yugo-
slavia and Vice-President of the Tribunal, generously gave the keynote address
to the Workshop. We also thank Vincent-Joël Proulx, of the National University
of Singapore, whose chapter closes this volume, for participating in the plena-
ry panel on national security. Finally, we express our gratitude to all the partici-
pants in the Workshop for the stimulating conversations which led to this
book.
Several of the chapters in this book originally appeared as a special issue of
the International Criminal Law Review in 2018. We would like to thank the cur-
rent editor in chief of the International Criminal Law Review, Professor Caro-
line Fournet, and her predecessor, Professor Michael Bohlander, for their guid-
ance and encouragement in producing the special issue. Their colleague at
Brill, Lindy Melman, has ably (and patiently) worked with us to bring this ed-
ited collection to fruition. Finally, we also thank Liam Elphick for excellent re-
search assistance and Lauren Carmody for valuable and painstaking research
and editorial assistance.
Holly Cullen, Philipp Kastner and Sean Richmond
Notes on Contributors
Miriam Cohen
is an Assistant Professor of International Law and Human Rights at Université
de Montréal. She is the author of Realizing Reparative Justice for International
Crimes: from Theory to Practice (Cambridge University Press, 2020). She has
published over 20 papers in international law and human rights in renowned
publications and is the recipient of prestigious fellowships and awards. Prior to
her academic career, she practised international law at the International Court
of Justice and at the International Criminal Court. She holds a Ph.D. in interna-
tional law from Leiden University and Masters of Laws (LLM) from Harvard
Law School, the University of Cambridge, and Université de Montréal. She is
an international lawyer (Québec Bar) and has appeared as Counsel before the
International Tribunal for the Law of the Sea.
Pauline Collins
is a Professor in the School of Law and Justice at the University of Southern
Queensland. She teaches dispute resolution and international humanitarian
law. Pauline’s Ph.D. is in the area of civil-military relations and the role of the
courts (University of Queensland). She has been published on matters such
as legal education, alternative dispute resolution, military justice, interna-
tional law and private military companies. Her latest book is The Military as a
Separate Society: Consequences for Discipline in the United States and Australia
(Lexington, 2019). Pauline has also been a legal practitioner in South Australia
working in general practice, Parliamentary Counsel, the Crown Solicitors Of-
fice, and the office of the Director of Public Prosecution. Pauline has degrees in
law, visual arts, public relations and is a Nationally Qualified Mediator.
Holly Cullen
is an Adjunct Professor of Law at the University of Western Australia. She is the
author of The Role of International Law in the Elimination of Child Labor (Brill,
2007) and numerous articles on international human rights law, modern slav-
ery and international organisations. She was a member of the International
Law Association’s research committee on Non-State Actors in International
Law and of the Advisory Group for the Child Labor Research Initiative at the
University of Iowa Human Rights Center. She is co-editor with Joanna Har-
rington and Catherine Renshaw of Experts, Networks and International Law
(Cambridge University Press, 2017).
Notes on Contributors ix
Shannon Fyfe
is an Assistant Professor of Philosophy at George Mason University, where
she is also a Fellow in the Institute for Philosophy and Public Policy, and an
Adjunct Professor at the Antonin Scalia Law School. She holds both a Ph.D. in
philosophy and a J.D. from Vanderbilt University. Her main research interests
are in political philosophy, ethics, and legal philosophy, with a particular fo-
cus on international conflict. She has published articles that engage with in-
ternational criminal law, speech act theory, just war theory, global justice, and
moral psychology, and she recently published International Criminal Tribu-
nals: A Normative Defense (with Larry May) with Cambridge University Press,
2017.
Alexander Heinze
is a qualified lawyer and an Assistant Professor of law at the University of
Göttingen, Germany. He holds a Ph.D. in International Criminal Law (with
honours), received his LLM in International and Comparative Law from Trin-
ity College Dublin, Ireland, with distinction and published various papers on
topics such as international criminal law and procedure, media law, com-
parative criminal law, human rights law and jurisprudence. His book Interna-
tional Criminal Procedure and Disclosure (Duncker & Humblot, 2014) won
three awards. He is a member of the International Law Association’s Com-
mittee on Complementarity in International Criminal Law, co-editor of the
German Law Journal, book review editor of the Criminal Law Forum, has
been working for the Appeals Chamber of the ICC as a Visiting Professional,
and has appeared as an expert before the Committee for Legal Affairs and
Consumer Protection of the German Parliament and as amicus curiae before
the ICC.
Philipp Kastner
is a Senior Lecturer at the Law School of the University of Western Australia.
He holds degrees from McGill University, Canada (D.C.L. and LL.M.) and the
University of Innsbruck, Austria (Dr. iur. and Mag. iur). He researches and
teaches in the areas of the resolution of armed conflicts and transitional jus-
tice, international criminal law, public international law and legal pluralism.
Publications include Legal Normativity in the Resolution of Internal Armed Con-
flict (Cambridge University Press, 2015) and International Criminal Justice in
bello? (Martinus Nijhoff, 2012). He is also the editor of International Criminal
Law in Context (Routledge, 2018).
x Notes on Contributors
Daniel M. Mburu
holds an LL.B. from the University of Nairobi and an M.St. from the University
of Oxford. He is an Advocate of the High Court of Kenya and Solicitor in Eng-
land and Wales. He currently works as a Legal Officer at the United Nations
Office of Legal Affairs in New York and has previously worked as a lawyer at
INTERPOL, Shearman & Sterling LLP, the Special Tribunal for Lebanon and
the International Criminal Tribunal for Rwanda.
Catherine Moore
is an international human rights and humanitarian law expert and practition-
er. She is currently a Protection of Civilians Officer for the United Nations Mul-
tidimensional Integrated Stabilization Mission in the Central African Republic
(MINUSCA), and previously served as both a Planning & Coordination Officer
and a Legal Officer in the United Nations Organization Stabilization Mission in
the Democratic Republic of the Congo (MONUSCO). Before her career in the
UN, she advised national governments on pending legislation for human rights
compliance, represented a Guantanamo detainee, and taught international
law at the University of Baltimore School of Law. Catherine has a B.A. in Ro-
mance Languages from the University of Georgia, a joint English and French
Law, LL.B with Maitrise from the University of Essex and the Université de
Paris Ouest Nanterre, and a LL.M. from the University of Virginia School of
Law.
Josh Pallas
is completing a Masters of Laws at the University of New South Wales (Aus-
tralia) focussing on international and criminal laws. He has previously taught
both international and criminal law and international relations at the Univer-
sity of Wollongong (Australia). He is a Senior Solicitor for a New South Wales
government agency working on criminal prosecutions.
Emma Palmer
is a lecturer at Griffith Law School, Queensland. Emma’s books Adapting Inter-
national Criminal Justice in Southeast Asia: Beyond the International Criminal
Court (Cambridge University Press) and The Amicus Curiae and International
Criminal Justice (co-authored, Hart) are available in 2020. Emma was awarded
her Ph.D. for her thesis, ‘International Criminal Law in Southeast Asia: beyond
the International Criminal Court’, from University of New South Wales Law in
2017, where she was a Research Assistant for two Australian Research Council
Discovery Projects. Between 2006 and 2011, and while completing her Masters
in Law, Emma worked as a senior investment analyst at Macquarie Bank,