A new school of theory rejects the traditional story that criminal law ought to be justified on retributivist or utilitarian grounds. Instead, proponents stress the need to anchor justifications for criminal law in a political theory of the state’s authority. Yet this new account gives rise to two unrecognized challenges, which emerge when we turn to the world beyond the state’s borders: it leaves us without an explanation for criminal law untethered to the state (e.g. international criminal law (ICL)); and it relies on an unrealistic conception of the political community, disregarding conditions beyond the state. These challenges have a common solution, which comes into view when we rethink the standard picture of ICL. Far from untethered from the state, ICL is deeply anchored in the state; indeed, it acts to secure the system of states. In doing so, ICL upholds the global conditions necessary for the state as conceived by this new line of criminal law theorists to function.
Over the last decade, a growing number of countries have adopted new laws and mechanisms to address the absence of meaningful procedures to raise post-conviction claims of factual innocence. These legal and policy reforms have responded to a global surge of exonerations, which have been facilitated by the growth of national innocence organizations that increasingly work across borders. It is striking that these developments have occurred with little help from international law. We label this omission as international law’s innocence gap. The gap appears increasingly anomalous given how foundational innocence protection has become at the national level, as well as international law’s longstanding commitment to the presumption of innocence, fair trial and appellate procedures, and other criminal process guarantees. This paper argues that the time has come to close international law’s innocence gap by recognizing a new human right to assert post-trial claims of factual innocence.
This book shines light on the role of ‘de facto international prosecutors’ as an emerging phenomenon. They are ‘private’ non-state actors, and state legal ‘officials’ in a foreign court, which pursue criminal accountability for those most responsible for core international crimes. It explains how and why they adopt the tasks of the offices of international prosecutors when local options to investigate fail and no international criminal tribunal is available. A particular focus of the book are the roles of witnesses and victims of core international crimes as ‘de facto international prosecutors’. The study reveals how crimes, such as torture, which have evolved as jus cogens and erga omnes obligations enable them to pursue prosecution in foreign courts exercising universal jurisdiction. The paper proposes two theoretical frameworks: 1) to conceptualise ‘de facto international prosecutors’; 2) to explain how ‘de facto international prosecutors’ conceptualise international criminal law.
Armed insurgents often establish their own courts in territory under their authority. Is it possible to view such rebel courts as embodiments of the rule of law and, in turn, legal under accepted norms of public international law? In the case of fundamentalist Islamic insurgents, a further and significant challenge reflects their rejection of state sovereignty and, as a consequence, the normative legitimacy of public international law. Driven by a desire to eschew ‘modern’ interpretation of the Qur’an and Sunnah, the Islamic State and the Taliban invoke institutions and norms from the early phase of Islam to sanction a limited number of crimes with extreme brutality. Beyond these similarities, however, each group structures its judicial governance in very different ways and deploys it for different purposes. Islamist rebel justice is analysed in light of international law, as part of a book-length study on the administration of justice by non-state armed groups in conflict zones.
It is widely accepted that, when determining the applicability of International Humanitarian Law, armed groups’ motivations are irrelevant. As long as organized violence has sufficient intensity, and the armed groups involved have the capacity to organize and carry out military operations, there is an armed conflict for legal purposes.
It follows from this agnosticism about motivations that large-scale criminal organizations can be treated legally on a par with political insurgencies. Drug cartels in particular, if sufficiently armed and well organized, can be armed groups before the law.
This paper examines and problematizes this legal state of affairs. It analyzes the distinction between criminal, political, and principled motivations, and it highlights important contrasts in the nature and practice of violence undertaken by criminal organizations versus political insurgencies. It concludes that organized criminality should not be treated as a non-state party to armed conflict.