bluuebunny/crossref_metadata_2025_split huggingface dataset:
Arbitration Procedure
Authors: Rubins Noah D , Papanastasiou Thomas-Nektarios , Kinsella N Stephan 
Published: May 2020

Abstract
This chapter provides an overview of international arbitration procedure both under arbitration treaties and contractual arrangements, particularly under the auspices of the World Bank’s International Centre for the Settlement of Investment Disputes (ICSID) and arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL). The chapter begins by describing the most prominent international arbitration rules. It then covers the pre-dispute drafting of an arbitration clause. Finally, it offers a guide through a “typical” arbitration, whether initiated pursuant to contract or treaty, from the lodging of a claim and the arbitrator selection process, through written and oral argument, to the issuance and challenge of awards.
Introduction
Authors: Heller Kevin Jon , Mégret Frédéric , Nouwen Sarah M. H. , Ohlin Jens David , Robinson Darryl 
Published: May 2020

Abstract
This introductory chapter considers the state of contemporary international criminal law (ICL). It shows that, on some level, ICL is merely a technique for criminalizing the violation of certain norms and may not have much of a comprehensive project of its own. Indeed, over time ICL has been associated with a variety of substantive projects, such as fighting terrorism, protecting peace, and punishing atrocities. It is impossible, moreover, to discuss ICL without discussing international criminal justice more generally. Furthermore, although ICL has edged ever further towards completeness, tremendous disagreement persists about not just the discipline’s norms, but even its very founding assumptions. The growing implementation of ICL has generated countless dilemmas of its own, after all. In fact, one might even argue that the status of ICL has become more uncertain following, and perhaps as a result of, the proliferation of opportunities—international and domestic—to enforce its normative promise through liberal-legal judicial mechanisms.
Defence Perspectives on Fairness and Efficiency at the International Criminal Court
Authors: Turner Jenia Iontcheva 
Published: May 2020

Abstract
This chapter focuses on the attorneys who represent defendants. On the basis of interviews with 18 defence attorneys at the International Criminal Court (ICC), nearly all of whom had extensive experience at other international tribunals, this chapter assesses whether the rise of ‘managerial judging’—greater judicial control over the conduct of trials in the name of ‘efficiency’—has adversely affected defence perceptions of the fairness of trials. Perhaps surprisingly, most defence attorneys do not believe that judges at the ICC have undermined the fairness of trials through their managerialism. In the majority’s view, the problem with the judges is not excessive emphasis on efficiency but unwarranted deference to the prosecution on a variety of issues, such as failing to demand adequate disclosure or not sufficiently questioning the adequacy of evidence during the confirmation of charges. This chapter thus concludes that, to promote defence perceptions of fairness, limiting managerial judging is less important than promoting equality of arms through, for example, greater legal aid and greater skepticism toward the prosecution’s case prior to trial.
Neither Here nor There
Authors: Jacobs Dov 
Published: May 2020

Abstract
This chapter argues that international tribunals minimize the need to accurately determine the defendant’s guilt by routinely ‘balancing away’ defence rights vis-à-vis other values that are deemed more important, such as ‘combating impunity’ or acknowledging the suffering of the victims. It identifies four different types of such balancing: foundational, procedural, institutional, and systemic. Foundational balancing concerns the (mis)use of the sources of international law. Procedural balancing primarily involves de-emphasizing the importance of defence rights by elevating the (assumed) rights of other actors in the system. Institutional balancing relates to the structural position of the defence at international tribunals. And systemic balancing focuses on how the collective nature of international crimes requires international tribunals to rely on substantive doctrines that make it more difficult to accurately assess the criminal responsibility of individual defendants. Those four types of balancing, this chapter suggests, relegate defendants to the margins of the trial process, significantly increasing the likelihood of unjust verdicts.
Teachings of Publicists and the Reinvention of the Sources Doctrine in International Criminal Law
Authors: Jain Neha 
Published: May 2020

Abstract
This chapter asks what the outsized role ‘publicists’ have played at the International Criminal Court (ICC) says about the methodological coherence of the field and, more generally, about public international law’s formal relegation of the ‘teachings of the most highly qualified publicists’ to a subsidiary status. It explores that question through the lens of the Court’s decision to reject joint criminal enterprise as a mode of liability in favour of indirect perpetration and co-perpetration. Here, the ICC’s overt reliance on German criminal law scholarship indicates that the Court has been much more willing to go beyond the formal sources of international law than the ICTY and ICTR, which adhered closely to classical public international law sources. This chapter suggests that—at least in practice—the work of publicists has been one of the most important legal sources in the development of specific aspects of the ICC’s jurisprudence. The valorization of scholarship is best explained sociologically instead of doctrinally—as reflecting the critical role publicists played in drafting the Rome Statute and continue to play as key members of international criminal law’s ‘new professional elite’.
Legitimacy in War and Punishment
Authors: Dannenbaum Tom 
Published: May 2020

Abstract
UN Security Council referrals are a legally sufficient basis for International Criminal Court (ICC) action under the Rome Statute and the United Nations (UN) Charter. However, the fact that each permanent member of the Security Council can veto any such referral and that three of those states have declined to ratify the Statute poses a legitimacy problem for the Court. Specifically, it undermines the Court’s moral standing to judge and thus its capacity to deliver on its core function. Because of both the structure and function of the Court, the privileged position of the Council’s permanent members is more undermining of ICC legitimacy than it is of Council-authorized military action in response to atrocity, and even than it was of the ad hoc tribunals created by the Council. One way to remedy this situation would be to vest the ICC with universal jurisdiction. Alternatively, the Court’s legitimacy would be enhanced if Security Council referrals were removed from the Statute. Those, however, are unlikely amendments. More modestly, the Prosecutor should decline all Security Council referrals under the ‘interests of justice’ test.
Africa and International Criminal Law
Authors: Gevers Christopher 
Published: May 2020

Abstract
This chapter argues that contemporary accounts of Africa and International Criminal Law (ICL), divergent and acrimonious as may be, generally rely on a foreshortened history of this relationship, one that begins in the 1990s. In contrast, the chapter aims to show that ‘Africa’ and Africans were present at ICL’s inaugural moment in 1919, and that for much of the ensuing period ‘Africa’, Africans (and later African states) have been a ‘present absence’, to use Toni Morrison’s phrase, but present and represented nonetheless. Moreover, by tracing the story of Africa and Africans’ ‘present absence’ in ICL from since 1919, and the continued silencing thereof in historiography of the field today, the chapter aims to highlight three threads of critique—concerning ICL’s racial politics, imperial entanglements and ‘regime of representation’—that weave their way, at times together at times apart, from 1919 until the present. The chapter will end by re-considering the relationship between Africa and ICL in light of this longer history, arguing that when doing so the question becomes not whether ICL (or the ICC) might be a field that operates on neo-colonial and racist lines, but whether it might have been anything else (or might yet be).
‘What is An International Crime?’
Authors: Greenawalt Alexander K.A. 
Published: May 2020

Abstract
This chapter defends a pluralist account of International Criminal Law (ICL). In contrast to other approaches to defining international crimes, I argue, as both a descriptive and a normative matter, that there is no hard and fast distinction between international offences and so-called ‘ordinary’ offences. Instead, there exists a continuum of regulation in which international law asserts varying degrees of non-exhaustive force over the criminal law. This pluralism derives principally from the normative underpinnings of ICL that, I argue, is concerned less with the prosecution of offences that are uniquely international in some qualitative sense than with protecting universal human values through a division of labour between international and domestic institutions. I develop this account through consideration of the historical evolution of ICL, the difficulties associated with competing positive law explanations of international crime, and the diversity of institutional responses that make of use of ICL.
From Aggression to Atrocity
Authors: Moyn Samuel 
Published: May 2020

Abstract
This chapter argues that, although the Nuremberg proceedings, otherwise known as the International Military Tribunal (IMT), were heavily focused on the crime of aggression, international criminal law’s (ICL) emphasis has shifted dramatically. Since the reinvention of ICL in 1990s, it has foregrounded atrocity. ICL is often presented as following a smooth trajectory, but actually there was a reversal or massive shift, from a priority on aggression to its near exclusion. The focus on atrocity—and the aspiration to make war ‘clean’—may humanize war rather than stigmatize it, and perhaps even enable war instead of limit it. This chapter suggests, as an explanatory hypothesis, that Nuremberg took place during a ‘passing window of plausibility’: the USA has generally opposed the criminal prohibition of aggression, either because such a system might demand US intervention or because it might pass judgment on US interventions. Circumstances aligned to allow the Nuremberg proceedings, after which ICL stalled again, and the switch to an atrocity focus helped fill the resulting void.
Immunity and Impunity
Authors: Haque Adil Ahmad 
Published: May 2020

Abstract
This chapter focuses on the relationship between immunity and impunity. Specifically, this chapter traces the arguments made by Hans Kelsen that international principles of immunity protect individuals from prosecution for acts taken in their official capacity. Given international criminal justice’s mandate to target the most culpable perpetrators of international crimes, who are often government leaders, the question of official immunity is the major roadblock to eliminating impunity. However, Kelsen even extended this view to regular soldiers acting on official government orders. Although this position is seemingly out of step with mainstream doctrine that assumes that lawful combatants can be prosecuted for violating jus in bello, this chapter demonstrates that Kelsen’s radical views nonetheless continue to linger today in the margins of the field.
Epistemological Controversies and Evaluation of Evidence in International Criminal Trials
Authors: Klamberg Mark 
Published: May 2020

Abstract
This chapter deals with the epistemological challenges posed by the evaluation of evidence in international trials. Unlike common-law juries, who are insulated from evidence deemed by a judge to be potentially irrelevant or prejudicial, international judges receive free access to all evidence in order to fulfill their role as fact-finders. This chapter suggests how judges should undertake that fact-finding obligation. It gives reference to an ‘alternative hypothesis’ standard of decision for evaluating the massive amounts of evidence presented at trial. Given the high-profile collapse of several recent cases at the International Criminal Court due to lack of evidence presented at trial, this chapter can help bring back standards of decision and other evidentiary issues to the center of the discussion.
From Machinery to Motivation
Authors: Mohamed Saira 
Published: May 2020

Abstract
This chapter considers the lost legacy of the concept of criminal organizations in international criminal law. When the notion of declaring the criminality of organizations, in addition to determining the guilt of individuals, was first proposed in anticipation of the trial before the International Military Tribunal at Nuremberg, organizational criminality was viewed as an opportunity both to recognize the role of organizations in nurturing mass criminality and to facilitate the prosecution of masses of individuals. But by the time the Tribunal was in operation, the first of these goals had faded away, and organizational criminality represented nothing more than a tool to accomplish individual criminality. This chapter argues that treating criminal organizations as a means to secure individual criminal liability represents a loss, a missed opportunity, in international criminal law. The condemnation of organizations that can attend organizational liability could have created within international criminal law an opportunity to expose the role of organizations in the perpetration of mass atrocity, to call attention to and analyze the institutionalized nature of mass atrocity crimes, which makes these crimes not only unthinkably destructive, but also inherently and importantly distinct from criminal wrongdoing in which a person’s conduct diverges from the standards of most of society. The missed opportunity of abandoning criminal organizations liability is particularly acute, this chapter contends, in light of the research in the decades since Nuremberg establishing how organizations affect individual behaviour. With greater understanding about the mechanisms for individuals’ desire to conform with peers, to obey authorities, and to rationalize their own actions, we can now see that organizations contribute to individuals’ decisions to commit crimes by providing forums and creating environments in which individuals come to believe that criminal behaviour is necessary or normal or even good, or in which individuals fail to recognize their own part in a criminal system. The organizations thus provide not only the machinery for atrocity, but also the motivation. By abandoning the substantive core of criminal organizations, international criminal law fails to identify the foundational role of organizations in creating mass atrocity crimes.
Criminal/Enemy
Authors: Douglas Lawrence 
Published: May 2020

Abstract
This chapter argues that the development of the international law of aggression has served to destabilize a dominant narrative based on the distinction between criminal and enemy. The criminal/enemy dyad has long been central to the western legal tradition. By attending to how rival traditions of legal theory have understood the dyad, the chapter illustrates how the criminalization of aggression marks one of the most distinctive developments in the history of international criminal law. This development, however, has proven problematic, as the criminalization of aggression has worked to deconstruct the traditional boundary between criminal and enemy, volatizing the very distinction between war and policing. The criminalization of aggression marks, then, something distinct from simply a growth of international law; it signals a fundamental shift that has left the relations between jus ad bellum and jus in bello in an uncertain state.
The Enemy of All Humanity
Authors: Luban David 
Published: May 2020

Abstract
This chapter focuses on crimes against humanity rather than aggression. Analyzing the notion of ‘enemy of humanity’, the chapter traces it back to tyrants rather than, as per the dominant narrative, pirates. It engages with what it means to label someone an enemy. The chapter argues that as long as the enemy is considered a criminal rather than an outlaw, and is treated in accord with humane law, the metaphor of enemy of humanity is not problematic. Next, the chapter turns to the concept of humanity in the notion of enemy of humanity. It argues that this term does not describe an existing phenomenon, but a normative ideal, and that this ideal lies at the very basis of international criminal law.
Hangman’s Perspective
Authors: Mann Itamar 
Published: May 2020

Abstract
This chapter takes Adolf Eichmann as an object of study in subjecting international criminal trials to three types of critique. First, adopting the perspective of the rule of law, this chapter engages with Hannah Arendt’s writing on the Eichmann trial to argue that international criminal trials are constantly suspected of becoming ‘show trials’. Second, turning to Shoshana Felman’s work, the chapter identifies a genre of critique according to which international criminal justice is premised on an experience of catharsis, in which the trauma of atrocity’s victims is alleviated (constituting a post-atrocity political community). Finally, this chapter analyzes a 2010 film that reveals the trauma of the man who executed Eichmann, to show the unacknowledged risks of wielding the violence of criminal justice. Based on this ‘hangman’s perspective’, the chapter suggests assessing international criminal trials in light of questions about the transnational allocation of such risks and about preexisting inequalities—economic, ethnic, and other—that determine the roles different people will end up playing in trials.
International Criminal Justice and Humanitarianism
Authors: Kendall Sara , Nouwen Sarah M. H. 
Published: May 2020

Abstract
This chapter reflects upon the interaction between international criminal justice and ‘humanitarianism’. Drawing on the work of Didier Fassin, the chapter highlights the degree to which humanitarianism has already gone through many of the same debates that international criminal justice is currently experiencing. On one level the logic of humanitarianism is quite distinct from international criminal justice and may even come in tension with it; both ‘govern’ in distinct ways, and according to different temporalities, objectives, values, and logics, and humanitarians may be wary of the partiality evident in ICL. But these differences may be more superficial than real. The chapter suggests that international criminal justice should learn some lessons from its sister field: in particular, about accountability to its claimed beneficiaries, unintended consequences, and self-reflection.
International Criminal Law and Culture
Authors: Cheah W. L. 
Published: May 2020

Abstract
This chapter deals with the tension that exists between international criminal law and ‘culture’. Operating in societies where the very meaning of punishment is contested, international criminal justice is often faced with a cultural challenge that endangers its legitimacy. At several levels, it exerts a marginalizing or exclusionary effect on the culturally dissimilar, while constructing certain understandings of cultural difference. The universalism of international criminal justice is hardly ever taken for granted by the actors that confront it, particularly in a context where justice itself appears to be cultural. At the same time, culture is contested, and local forms of justice may be challenged as merely reflecting certain groups’ agendas. Finally, international criminal tribunals’ encounter with audiences coming from a variety of cultures suggests a potential for confusion and misunderstanding.
The Core Crimes of International Criminal Law
Authors: Schwöbel-Patel Christine 
Published: May 2020

Abstract
The ‘core’ crimes set out in the International Criminal Court’s Rome Statute - the crime of genocide, war crimes, crimes against humanity and aggression - are overwhelmingly assumed to be the most important international crimes. In this chapter, I unsettle the assumption of their inherent importance by revealing and problematising the civilizational, political-economic, and aesthetical biases behind designating these crimes as ‘core’. This is done by shedding light on discontinuities in the history of the core crimes, and unsettling the progress narrative ‘from Nuremberg to Rome’. More specifically, crimes associated with drug control are placed in conversation with the accepted history of the International Criminal Court (ICC) to exemplify a systematic editing of the dominant narrative of international criminal law.
Transnational Crimes
Authors: Guilfoyle Douglas 
Published: May 2020

Abstract
This chapter focuses on transnational crimes. Though these were long part of the international criminal law (ICL) canon, it is only late in the discipline’s history that they became conceived as being something distinct. As such, while this chapter envisages the history of ICL, it also focuses more on the origin of the distinction in the Draft Code of Crimes Against the Peace and Security of Mankind. This distinction, which became quite influential, foregrounded crimes under general international law and crimes of international concern as two separate categories. However, this chapter takes a skeptical view of the distinction, noting the ‘question begging’ character of defining international crimes on the basis of an implicitly accepted notion of what international crimes are. But this is not to say that the attempt at drawing distinctions is fruitless—in fact, it sustains relevant conversations about, for example, the intrinsic character of gravity of various crimes in relation to each other. But, as this chapter shows, it does point to an irreducible element of faith in any act of prioritization.
The Unity of International Criminal Law
Authors: Mégret Frédéric 
Published: May 2020

Abstract
This chapter suggests the need to rethink, on both doctrinal and political grounds, the distinction between core and transnational criminal law with a view to recovering a sense of the discipline of international criminal law’s lost unity. It identifies a tendency towards fragmentation and rarefication that has led both core crimes and the operation of international criminal tribunals to monopolize attention and increasingly be identified with ‘international criminal law’ (ICL). This chapter argues that, in addition to having a weak doctrinal basis, that distinction is theoretically and criminologically dubious. It suggests that the time may have come to recover at least a unified research agenda when it comes to ICL—one that rediscovers the extent to which supranational and transnational criminal law are at the very least joined at the hip. This involves better conceptualizing how the defining phenomenon of ICL is not only the criminalization of certain international law prohibitions, but also the ascendancy of certain ideas about crime control globally, as well as the degree to which both core crimes and transnational crimes rely on a common criminal corpus and conceptual baggage. The chapter ends with a call for renewed engagement with a sort of meta-theory of ICL, one that would make more sense of the relations between its diverse constituent parts.