This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's approach, (...) and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)

Our understanding of civilian casualties is not based solely on what is reported but also who reports these human rights abuses. Competing interests at the data collection stage have impeded the development of a more thorough understanding of civilian victimization during conflict. We find that current definitions of “casualty” neglect nonphysical forms of victimization and that group-based definitions of “civilian” can obscure the role of different individuals in conflict. We contend that the dominant definition of “civilian casualty” should be expanded (...) to include the full array of harm inflicted on individuals, including psychological harm and what we refer to as multiple casualties of conflict. Expanding our definition of civilian casualties to include different degrees and kinds of wartime victimization would improve both documentation and analysis. We propose several areas for improvement in terms of the documentation of civilian casualties as well as potential solutions to the problems we identify. (shrink)

Is it ethical for the prosecutor at the International Criminal Court to consider political factors, such as peace processes, in selecting situations to investigate or cases to prosecute? During the early years of the court, a number of documents and statements from the Office of the Prosecutor suggested that there were occasions when it was. Two OTP policy papers issued in 2003 recommended that the prosecutor assess “all circumstances prevailing in the country or region concerned, including the nature and stage (...) of the conflict and any intervention by the international community,” and whether prosecution might “exacerbate or otherwise destabilize a conflict situation.” In the same spirit, the ICC's chief prosecutor, Luis Moreno-Ocampo, referred to his decision-making as a “dialogue between many actors” with a “strategic dimension... [that] involves all stakeholders.” This language suggested a process of consultation and coordination with local and international actors involved in conflict resolution to adapt international criminal justice to on-the-ground political realities. (shrink)

More than sixty years after the seminal Nuremberg trials, different forms of transitional justice mechanisms abound around the world. Above all, the International Criminal Court started recently the hearings in its very first case. Reading the document containing the charges against Thomas Lubanga Dyilo, a militia leader accused of horrendous war crimes committed in the Democratic Republic of Congo, the question of why to punish perpetrators of atrocity crimes seems almost ludicrous. However, concerns that international prosecutions inadvertently prolong or even (...) exacerbate conflicts do require a response. Most proponents of international criminal tribunals argue that prosecutions have a deterrent effect. This article reviews the deterrence argument, highlights its inherent complexities, and proposes a refined approach to meet both the realities of atrocity crimes and international prosecutions. (shrink)

After more than a dozen years of activity, some 161 indictments, 64 arrests, and 47 surrenders, the International Criminal Tribunal for the former Yugoslavia (ICTY) has accomplished a good deal in terms of its primary task of prosecution. Nonetheless, there is still much debate over the state of transitional justice in the Balkans and what has been accomplished. We cannot forget that the ICTY was created with broad political and social purposes in mind, specifically to contribute to the restoration and (...) maintenance of peace. Using a comparative framework, we develop benchmarks of transitional justice outcomes to examine these vague but important and ambitious goals. Although conventional wisdom says that the ICTY is used instrumentally by Balkan leaders who are fundamentally opposed to the court’s existence, we demonstrate that there is also evidence of broader political and social change throughout the region. Thus, we contend that Balkan countries have indeed moved beyond mere prosecution. (shrink)

International criminal tribunals are weak institutions, especially since they do not have their own police forces to execute arrest warrants. Understandably then, much of the existing literature has focused exclusively on pressure from major powers and on changing domestic politics to explain the apprehension of suspected war criminals. In contrast, this article turns attention back to the tribunals themselves. I propose three ways in which the activities of international criminal tribunals impact compliance with arrest warrants: through the selection of individuals (...) to indict, demonstrated leniency on some suspects and outreach to domestic legal professionals. Using a duration model that accounts for sample selection and data collected on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, I test these theories alongside other existing explanations. I find that court activities can have an independent effect on the successful implementation of international criminal law. (shrink)

This article deals with the International Criminal Court (ICC) as a point of contention in US relations with Germany and Japan. Both countries rank among America's closest allies, but they have also been supporting the establishment and operation of the ICC, although each to a different extent. The article analyzes the reasons for the three countries-vis the US. It suggests that Berlin's idealistic position and full ICC support on the one hand, as well as Japan's cautious and pragmatic approach on (...) the other, are both rooted not only in their individual evaluations of the ICC's institutional design, but also the varying degrees of their bi/multilateral orientation and the extent of their on US security commitments. (shrink)

The American experience of war is ironic. That is, there is often an intimate and unexamined relationship between seemingly contrary elements in war such as morality and politics. This article argues that without understanding such irony, we are unlikely to reflect in morally comprehensive ways on past, present, or future wars. Traditional schools of thought, however, such as moralism and political realism, reinforce these apparent contradictions. I propose, then, an alternative—"ethical realism" as informed by Reinhold Niebuhr—that better explains the irony (...) of war. Through an ethical realist examination of the U.S. Civil War, World War II, and the Iraq War, I consider how American political interests have been inextricably linked with deep moral concerns. Ethical realism charts a middle path that ennobles traditional realpolitik while eschewing certain perfectionist tendencies of moralism. Ethical realism provides a conceptual framework for evaluating these other frameworks—a distinct form of moral-political deliberation about war. (shrink)

I processi di transizione post-conflitto pongono questioni prominenti per l’agenda politica globale. Si pensi, per esempio, alla transizione democratica in Sud Africa dopo la fine dell’Apartheid o alla ricostruzione politica dei paesi facenti parte dell’ex-Jugoslavia all’indomani delle guerre dei Balcani. Quali principi normativi dovrebbero informare tali processi? Questa domanda è al cuore del crescente dibattito sulla “giustizia transizionale”. Questo dibattito si è concentrato principalmente sulla rettificazione delle ingiustizie occorse a causa dei torti perpetrati e subiti dalle parti coinvolte. Di conseguenza, (...) la giustizia è stata tipicamente concepita come una proprietà di esiti distributivi di diritti e opportunità. I processi di transizione post-conflitto sono giusti nella misura in cui sono in grado di condurre a tali esiti. Un simile approccio orientato agli esiti è capace di rendere conto di dimensioni morali, animate da preoccupazioni di giustizia e/o pacificazione, che dovrebbero certamente figurare nella caratterizzazione e valutazione normativa dei processi di transizione. Tuttavia, esso rischia di perdere di vista un’altra dimensione egualmente rilevante che riguarda le qualità inerenti ai processi di transizione stessi. Per illuminare questa dimensione, vorrei portare l’attenzione su di una diversa idea di giustizia che riguarda le proprietà inerenti alle interazioni tra persone; la giustizia nelle interazioni. La tesi che sosterrò è che le procedure costitutive dei processi di transizione post-conflitto non dovrebbero essere disegnate con la sola o prioritaria preoccupazione di condurre le parti a un consenso o compromesso su di un accordo capace di rettificare le ingiustizie perpetrate e subite. È anche necessario che questi processi siano strutturati in modo da consentire alle parti di reinterpretare il loro conflitto come un problema condiviso, che richiede l’instaurazione di dinamiche d’interazione cooperative capaci di realizzare forme di trattamento inerentemente giuste delle loro pretese reciproche. (shrink)