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- Almqvist, Jessica
(författare)
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A Human Rights Appraisal of the Limits to Judicial Independence for International Criminal Justice
- 2015
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Ingår i: Leiden Journal of International Law. - 0922-1565. ; 28:1, s. 91-112
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Tidskriftsartikel (refereegranskat)abstract
- The UN Security Council's involvement in the area of international criminal justice raises concerns about judicial independence. Of primary concern in this study is the degree to which this political organ has come to determine and restrict jurisdiction of international criminal tribunals, with the effect of excluding cases involving alleged grave crimes by actors whose presence in situations of which the Council is seized is supported by its permanent members. This control, it will be argued, undermines the basic conditions for a sound administration of justice, as it impedes these tribunals from selecting the cases that may come before them in accordance with respect for human rights and the rule of law. More specifically, restrictions imposed by political organs, leading to unjustified unequal treatment before the law and the courts of perpetrators and victims of grave crime in a given situation, are contrary to principles of equality and non-discrimination. A theory of international judicial independence should therefore extend to a consideration of the legality of such restrictions and acknowledge it as an essential requirement of independence.
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| 2. |
- Arvidsson, Matilda, et al.
(författare)
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The turn to history in international law and the sources doctrine : Critical approaches and methodological imaginaries
- 2019
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Ingår i: Leiden Journal of International Law. - 0922-1565. ; 33:1, s. 37-56
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Forskningsöversikt (refereegranskat)abstract
- Expanding now familiar debates about the impact of the 'historical turn' upon the field of international law, this article considers some of the different ways in which 'turn to history' scholars have confronted the methodological and theoretical tensions arising from the central, yet paradoxical, role occupied by the sources doctrine in international law. We suggest that the anxiety over the sources of international law as the basic methodological precepts of the discipline has been a catalyzing element for a radical reengagement with the canon of international law, one with a significant impact on the field's existing parameters and doctrinal limits. Within the three streams of scholarship we explore here, history has become a site of creative engagement for scholars in opening up the discipline to diverse ends, one in which a new doctrinal universe can be created, and new issues, sources, subjects, and approaches can be explored. Yet, by opening up international law's sources doctrine, reactionary causes and unjust ends may equally well be the result. This account is an attempt at diversifying the narrative surrounding the causal relationship between history and the ongoing changes to the field of international law, along with the differential practices, techniques and epistemological foundations behind the history of international law as an evolving discipline, and of the different scholarly motivations of its specialists.
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| 3. |
- Baaz, Mikael, 1966
(författare)
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Back to the future: Promoting peace through international law
- 2017
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Ingår i: Leiden Journal of International Law. - 0922-1565 .- 1478-9698. ; 30, s. 775-792
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Tidskriftsartikel (refereegranskat)abstract
- The world as a whole has not been at peace since 1914, and it is definitely not at peace today. David J. Dunn argues that this state of affairs may be due, in no small part, to aspects of the conventional wisdom that informs practical foreign policy and diplomacy. For example, the ancient notion si vis pacem, para bellum [if you desire peace, prepare for war] (Vegetius) or the nineteenth century idea that argues ‘[w]e have no eternal allies, and we have no perpetual enemies. Our interests are eternal and perpetual, and those interests it is our duty to follow’ (Lord Palmerston). These ‘insights’ neatly summarize the intellectual core of political realism; in particular, the ‘balance-of-power’ doctrine.
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| 4. |
- Baaz, Mikael, 1966
(författare)
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Dissident Voices in International Criminal Law
- 2015
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Ingår i: Leiden Journal of International Law. - 0922-1565. ; 28:3, s. 673-689
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Tidskriftsartikel (refereegranskat)abstract
- Since the end of the Cold War, societies from the former Soviet Union and others throughout Eastern Europe, Africa, Asia, and Latin America have overthrown dictators and other authoritative rulers in the hope of allowing democracy, the rule of law, and human rights. In some cases, the change has been violent and drawn out, while in other cases the change has been quick and (more or less) non-violent. Regardless of whether the change has been violent or not, a crucial question during and after transition is: In what ways should post-authoritarian and/or post-conflict societies deal with their ‘evil’ past in order to ‘enable the state itself to [once again] function as a moral agent’? This question constitutes the very core of what is known as ‘transitional justice’ (TJ).
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| 7. |
- Byrne, Rosemary, et al.
(författare)
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Understanding the Crisis of Refugee Law: Legal Scholarship and the EU Asylum System
- 2020
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Ingår i: Leiden Journal of International Law. - 0922-1565. ; 33:4, s. 871-892
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Tidskriftsartikel (refereegranskat)abstract
- In 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among Member States of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis, collectivizing external border control and shifting refugee ‘responsibility’ to new Member States with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.
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| 9. |
- Hajdin, Nikola, 1987-
(författare)
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The actus reus of the crime of aggression
- 2021
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Ingår i: Leiden Journal of International Law. - 0922-1565 .- 1478-9698. ; 34:2, s. 489-504
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Tidskriftsartikel (refereegranskat)abstract
- To adjudicate a claim on individual criminal responsibility, the court has to establish objective and subjective links between the individual and the crime. This article studies the material (actus reus/objective) elements of the crime of aggression (conduct, consequence and circumstance) and suggests a reading that solves most of the conceptual and practical issues regarding criminal responsibility for this crime. The main contribution is an ontological distinction between the material act of use of violence and the act of aggression, which are both subsumed under the term ‘state/collective act’. The former is a consequence element and therefore is to be understood in its naturalistic meaning – a perceivable result of one’s action. The latter is a legal-evaluative notion and as such constitutes a circumstance that renders the violation of the prohibitory norm (the union of conduct and consequence) as being wrongful. This distinction is crucial for the system of attribution of criminal responsibility, as different mental (subjective) elements apply to consequences and circumstances.
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