Emerging Voices

Emerging Voices: The European Court of Human Rights and Women Affected by Enforced Disappearances of Their Relatives

[Grazyna Baranowska is a Senior Researcher at the Poznań Human Rights Centre of the Institute of Law Studies of the Polish Academy of Sciences.] The nature of enforced disappearances is that it affects whole families, rather than only the individuals who disappeared. While the majority of the forcibly disappeared are men, these disappearances have a strong economic, socials and psychological effects on the...

Emerging Voices: Domestic Regulation of Universal Jurisdiction–The Role of National Prosecutors.

[Amina Adanan is a PhD candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.]  In common law and civil law legal systems it is the responsibility of the public prosecutor to determine whether the prosecution of an international crime is pursued. The level of this discretionary power and the considerations to be taken into account in making the...

Emerging Voices: ‘Sovereignty in the Age of Global Terrorism’ What is the Role of International Organizations?

[Dr Myriam Feinberg is a Postdoctoral Fellow at the Minerva Center for the Rule of Law under Extreme Conditions, University of Haifa. The topic addressed in this blog post is based on her monograph Sovereignty in the Age of Global Terrorism – The Role of International Organisations published by Brill/Martinus Nijhoff in May 2016.] The attacks of 9/11 brought terrorism to the international stage. They...

Emerging Voices: Is the Margin of Appreciation Accorded to European Union Member States Too Wide, Permitting Violations of International Law?

[Jenny Poon is a Doctoral Candidate at the Faculty of Law of Western University, Canada and a Barrister & Solicitor in Ontario, Canada. The topic addressed in this post is based on a paper entitled State Discretion on Asylum Claims Procedures: Violation or Adherence to Non-Refoulement? All websites were accessed on 22 July 2016. The author would like to thank...

Emerging Voices: Can Foreign Investors Enforce International Investment Law in U.S. Courts?

[John Coyle is an Assistant Professor at the University of North Carolina School of Law.] On June 14, 2016, the Islamic Republic of Iran initiated proceedings against the United States before the International Court of Justice (“ICJ”), alleging that the United States had violated the 1955 Treaty of Amity, Economic Relations, and Consular Rights (“Treaty”) between the two nations.  Iran claimed,...

Emerging Voices: A Case of Firsts for the International Criminal Court: Destruction of Cultural Heritage as a War Crime, Islamic Extremism and a Guilty Plea

[Andrea Bowdren (LLM (LSE), BCL International (NUI)) is a trainee solicitor at Arthur Cox in Dublin, Ireland. All views are the author's own.] The trial of Ahmed Al Faqi Al Mahdi before the International Criminal Court represents a series of firsts for international law and justice. Al Mahdi is the first individual from Mali brought before the International Criminal Court, the first...

Emerging Voices: Computational Analysis of International Law-Using Text-As-Data Tools to Investigate International Investment Agreements

[Wolfgang Alschner (PhD in International Law, JSM (Stanford)) is a post-doctoral researcher at the World Trade Institute in Bern and the Graduate Institute in Geneva specializing in text as data analysis of international law.] As international law scholars we are overwhelmed with information. The United Nations Treaty Series alone contains more than 50,000 treaties. Add to that the many thousand decisions by...

Emerging Voices: Promoting Threat? Assessing the Role of the European Union as an Enforcer of International Law in the Ukrainian Crisis

[Alexandra Hofer is a Doctoral Researcher at Ghent University, GRILI member. The topic addressed in this post is based on a paper entitled Promoting Threat: The Effect of European Union Restrictive Measures on the Development of International Law’s Enforcement, a Sociological Approach. All websites were last accessed on 5 July 2016.] The starting point of this post is related to the renewal...

Emerging Voices: Incorporation of Plural Realisations of Justice within the ICC System

[Justin S. Yang, PhD Researcher at King’s College London; LL.M at Leiden University.] The International Criminal Court (ICC) projects a legal framework that is unique from the prior expressions of international criminal justice. In the construction of its Statute, in particular through the system of complementarity, the Court embodies the potential to actualise a horizontal and communitarian system of justice; rather than mandating a singular perspective of law in a vertical hierarchy, the ICC framework is designed to accommodate the inherent plurality of its international membership. Tracing the development of international criminal justice institutions in the 20^th century has illustrated that this project has been in oscillation between peak periods of heightened inter-state cooperation and trough periods of resistance to encroachments on Westphalian sovereignty. The respective institutions that were established following World War I, World War II, and the Cold War have predominantly reflected the interests of only the particularly powerful states, albeit under international communitarian rhetoric. Prior to the ICC, exercises in international criminal justice were exclusively facilitated first by the key multinational states of the post-war Allies, and later by the P5 of the UN Security Council. Rather than devising a new justice system that could be compatible with sovereign equality and the multiplicity of legitimate legal systems on the international plane, the post-war multinational bloc opted to adopt the vertical trial-based nature of Western domestic criminal systems. In other words, these judicial institutions, acting on behalf of the multinational leadership, presided at the apex of their respective scope of adjudication, in the same way a sovereign reigns supreme in its domestic system. Mirroring the capacities of the sovereign, these international judiciaries were unchallengeable, and arbitrarily made claims to various laws, as understood and accepted by them, onto diverse heterogeneous situations. In this penetrative hierarchy, sovereign boundaries and the indigenous legal systems of the subject state were explicitly disregarded and disapplied by the adjudicators. Therefore, diverse circumstances, local peculiarities, and contextual relevancies, all of which could materially affect the process of adjudication and determination of culpability, failed to be considered. The crimes were analysed solely through the perspectives of the multinational victors. The ICC marks a departure from this tradition of vertical justice. The democratic legitimacy inherent in its treaty-based creation, and its central tenets of independence and impartiality has, in theory, separated criminal adjudication from overarching political agendas, including that of the UN Security Council. The symbiotic relationship between the Court and its member states, within the complementarity regime, has allowed for a horizontal, stateless, and impartial system of justice to exist over the global community. Being complementary to national systems means that the Court preliminarily defers to a state’s sovereign prerogatives to exercise criminal jurisdiction over international crimes. This prerogative is perceived as a duty of every state (Rome Statute, Preamble). Upon failing this duty at a standard deemed acceptable by the Court, the case may then be admitted into the ICC docket. State proceedings are therefore inherently underpinned by the implicit threat of the Court ‘seizing’ the case, if the framework of preventing impunity (Rome Statute, Article 17) is not satisfactorily upheld.