Crimes Against Humanity

Nergis Canefe

Description

This volume considers how, based on the examination of cases pertaining to transitional justice settings that resort to local interpretations of crimes against humanity jurisprudence, fragmentation of international law and circumscribed applications of universal jurisdiction are necessary aspects of the grand enterprise to overcome the impasse of the tainted legacy of international criminal law in the Global South. If we are to proceed with adjudication of the most egregious and heinous crimes involving state criminality without facing the charge of neo-colonialist plotting, then we must reckon with localised and domesticated interpretations of international criminal law, rather than pursuing strict forms of legislative dictation of international criminal law.

Frontispiece: Tree of Life, by the author
Introduction
Chapter I. Topographies of Universal Jurisdiction in International Law, Legal Pluralism and the Curious Case of the International Criminal Court
Chapter II: Universal Jurisdiction and Genealogies of International Criminal Law
Chapter III. Crimes Against Humanity Jurisprudence in International Law and The Conundrum of Jurisdictional Certainty
Chapter IV. Mea culpa, Sua culpa, Tua Maxima Culpa: Collective Responsibility, Societal WrongDoing and Legal Judgment
Chapter V. Through the Looking Glass: Hybrid Courts and International Criminal Law in the Global Sout
In Lieu of Conclusion: Deliverance of Justice in International Criminal Law and the Role of Political Judgment as Purposive Action

Sujets

• Criminal Law
• Droit et juridique
• Law

Informations

• Publié par: University of Wales Press
• Date de parution: 15 avril 2021
• Nombre de lectures: 0
• EAN13: 9781786837035
• Langue: English
• Poids de l'ouvrage: 5 Mo

Extrait

INTERNA TIONAL LA W
Crimes Against
Humanity
CAH.indd 1 16/03/2021 08:53:08Series Editors
Diane Marie Amann
University of Georgia
Yvonne McDermott
Swansea University
Editorial Board
Simon Chesterman
National University of Singapore
Fiona de Londras
University of Birmingham
Fionnuala Ní Aoláin
Queens University, Belfast and University of Minnesota
Ryszard Piotrowicz
Aberystwyth University
Volker Roeben
University of Dundee
Carsten Stahn
Leiden University
CAH.indd 2 16/03/2021 08:53:08INTERNA TIONAL LA W
Crimes Against
Humanity
The Limits of Universal
Jurisdiction in the
Global South
Nergis Canefe
UNIVERSITY OF WALES PRESS
2021
CAH.indd 3 16/03/2021 08:53:08© Nergis Canefe, 2021
All rights reserved. No part of this book may be reproduced in any material form
(including photocopying or storing it in any medium by electronic means and
whether or not transiently or incidentally to some other use of this publication)
without the written permission of the copyright owner except in accordance with
the provisions of the Copyright, Designs and Patents Act 1988. Applications for
the copyright owner’s written permission to reproduce any part of this publication
should be addressed to the University of Wales Press, University Registry,
King Edward VII Avenue, Cardif CF10 3NS.
www.uwp.co.uk
British Library CIP Data
A catalogue record for this book is available from the British Library.
ISBN 978-1-78683-702-8
eISBN 978-1-78683-703-5
Te right of Nergis Canefe to be identifed as author of this work has been asserted
in accordance with sections 77 and 79 of the Copyright, Designs and Patents
Act 1988.
Typeset by Marie Doherty
Printed by CPI Antony Rowe, Melksham, United Kingdom
CAH.indd 4 16/03/2021 08:53:08Tis work is dedicated to Howard Adelman, an untiring mind
with valour and a conscience with patience and wisdom – a
mentor, friend, guide and pathfnder: ‘hic manebimus optime!’
CAH.indd 5 16/03/2021 08:53:08Tree of Life, by Nergis Canefe
CAH.indd 6 16/03/2021 09:01:44Series Preface
Te International Law series aims to give a platform to dynamic and
cutting-edge research in international law, with a strong focus on legal
theory in international law.
Nergis Canefe’s Crimes Against Humanity is an ambitious scholarly
project, which builds on an impressively broad range of scholarship to
propose a fundamental rethinking of the role of universal jurisdiction
in securing justice and accountability for the victims of egregious and
systematic mass human rights violations. Firmly situated in the rich
tradition of critical legal scholarship, Canefe’s work is notable for its
seamless fusion of theoretical and practical considerations.
This outstanding book is a very welcome addition to the
International Law series. We continue to welcome proposals for books
that bring new and exciting perspectives on diverse areas of
international law.
Professor Diane Marie Amann
University of Georgia
Professor Yvonne McDermott
Swansea University
CAH.indd 7 16/03/2021 08:53:08Writing pages:Layout 1 23/6/09 13:39 Page 291Contents
Acknowledgements xiii
List of Acronymsxvii
Introduction1
1 Topographies of Universal Jurisdiction in International Law, 25
Legal Pluralism and the Curious Case of the International
Criminal Court
Introduction 25
I. Applications of Legal Pluralism in International Law 28
A.Te Legacy of the New Haven School 31
B.TWAIL Scholarship and the Radical Pluralism Debate 35
C. Radical Pluralism and Beyond 38
II.Transnational Character of Accountability Regimes in 41
International Law and Multicentricity of Legal Practices
A. Fragmentation in International Law and the Fragile 43
Balance of Primary and Secondary Rules in
Accountability Regimes
B. Te Project of International Law and the 44
Jurisprudential Promise of the ICC: Disciplining the
Domestic Realm through International Criminal Law?
C. International Criminal Court and the Ideal of 48
Complementarity in International Law
D. Mandate of the International Criminal Court: 50
Jurisprudential versus Political Realities
Conclusion 51
CAH.indd 9 16/03/2021 08:53:08Contents
2 Universal Jurisdiction and Genealogies of International 57
Criminal Law
Introduction 57
I. Nemo Me Impuna Lacessit? Te Ethos of Universal 59
Jurisdiction
II. Divided We Unite? Fragmentation and Legitimacy in 62
International Law
III. Legitimacy of International Law: Lingering Questions 65
IV. Te Question of the State in International Law as Seen 68
from the Global South: A Chance to Start Anew?
V. Jus Gentium and the Outer Limits of International Law 73
VI. Jus Cogens or Not – Dilemmas? 76
Conclusion 79
3 Crimes Against Humanity Jurisprudence in International 81
Law and the Conundrum of Jurisdictional Certainty
Introduction81
I. Te Normative Architecture of Crimes Against 85
Humanity Jurisprudence
II. Competing Politico-Normative Visions 94
III. Adjudication, Responsibility and the Law: Limits 98
of Universal Jurisdiction
Conclusion 103
4 Mea Culpa, Sua Culpa, Tua Maxima Culpa: Collective 107
Responsibility, Societal Wrongdoing and Legal Judgment
Introduction107
I. Beyond Eichmann: On the Necessity of Judgment 112
II.Towards an Engaged Teory of Judgment and 115
Collective Responsibility
A. Te Treshold Question 116
B. Te Outcomes Perspective 119
III. Collective Responsibility and Legal Judgment in 122
International Law: Te Jaspers Alternative?
x
CAH.indd 10 16/03/2021 08:53:08Contents
IV. Moral Responsibility as an Epicurian Cure for 124
the Conundrums of International Criminal Law?
V. Collective Responsibility and the Distribution of 129
Blameworthiness
Conclusion: Te Dilemma of the Sum Total versus 132
Its Constitutive Parts
5 Trough the Looking Glass: Hybrid Courts and 139
International Criminal Law in the Global South
Introduction 139
I. Mapping Out Responsibility for Mass Atrocities 141
A. More Tan Each unto His Own – Hybrid Courts 143
in the Global South
II.Te Clarion Call of Universal Jurisdiction in the 145
Global South
A.Te ICC and Domestic Applications of the 151
Rome Statute
B. Te ICC and the Importance of the Complementarity 160
Principle for the International Legal Accountability
III. Hybrid Courts: Fractured or Overlapping Legal 164
Regimes of Accountability?
Conclusion: Hybrid Courts as New Actors of International 168
Criminal Law in the Global South?
In Lieu of Conclusion: Deliverance of Justice in International 177
Criminal Law and the Role of Political Judgment as
Purposive Action
Notes 187
Bibliography261
Index303
xi
CAH.indd 11 16/03/2021 08:53:09Writing pages:Layout 1 23/6/09 13:39 Page 291Acknowledgements
Tis work’s completion spanned over a decade. At Osgoode Hall Law
School, Toronto, Canada, I am truly indebted to Craig Scott, Leora
Salter, Ruth Buchanan, the late Michael Mandel, Les Jacobs, Allan
Hutchinson, Leslie Green, Sharry Aiken, Harry Arthurs, Amar Bhathia,
Peer Zumbansen and Sonia Lawrence for their critical stance, superb
guidance and scholarly advice.
At the non-Osgoode part of York University, I owe special thanks
to colleagues and friends who encouraged me not to give up the
‘project’ despite illnesses and deaths in the family and my own trials and
tribulations with cancer and all that comes with it. I am especially
marked by the gentle and yet assuring hand of Brenda Spotton, Lorne
Foster, Soren Frederiksen, David Mutimer, Elizabeth Dauphinee, Anna
Agathangelou, Margo Baretto and Carolyn Cross. Tey became the
pillars of strength and calm in an ever-changing tide of life circumstances,
steadying my racing mind and bringing back focus and concentration
whence memory and sense left me adrift.
I also benefted immensely from the scholarship and friendship
of Ranabir Samaddar, Paula Banerjee and Nasreen Chowdhory in
Calcutta, India; Galya Ben-Arieh in Evanston, USA; Roberto Lopez
and Beatriz Sanchaz Mojica in Bogotà, Colombia; Loren Landau in
South Africa; Chris Dolan in Kampala, Uganda; and Susan McGrath,
Jennifer Hyndman and Michele Millard in Toronto, Canada, all of
whom shared their wisdom and insights with me on state criminality
and dimensions of human sufering gone unacknowledged. We worked
together on various projects pertaining to ethical, socio-political and
legal dimensions of transitional justice in the Global South throughout
the past decade.
In Istanbul, Turkey, I would like to thank Galma Akdeniz, Seda
Kalem, Seda Peker, Gökçe Çataloluk and Bilgi University Law School
CAH.indd 13 16/03/2021 08:53:09Acknowledgements
faculty and students at large for being a most welcoming and yet
engagingly critical audience for many of my ideas at their reception.
In particular, Turgut Tarhanlı has been both an inspiration and a true
beacon of light despite many an unforgivable and unforgettable
development in the region. As the long-standing Dean of Bilgi University
Law School, he encouraged and actively supported me to mount my
own courses on international criminal law, transitional justice, state
criminality and comparative administrative law in Turkey. During my
several short stays in Istanbul, teaching international law, I had a chance
to share some of my fndings with extremely courageous and well-read
human rights lawyers who were doing their graduate degrees and I
also owe them all such gratitude for thinking together, identifying key
problem areas concerning the applications of international criminal law
in the Global South, and on the rare occasion solving very difcult legal
puzzles, at least for future purposes when they will be able to openly
engage with these issues despite a genuine threat of incarceration. In
particular, I would like to thank Zülfye Yılmaz, Can Turgut, Özge
Demir and Ezgi Çetiner.
As a special note in closing, I owe so much more than thanks to
one particular person. I do not know where this work would have been
today without the stern but always thoughtful and thor