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Article

The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Incitement/Conspiracy as Missing Modes of Liability

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords modes of liability, International Law Commission, crimes against humanity, incitement, conspiracy
Authors Joseph Rikhof
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity does not include the inchoate crimes of conspiracy or incitement. However, this choice has generated a great deal of academic commentary. This article critically assesses the choice of the drafters to exclude conspiracy and incitement liability, arguing that their decision was flawed. It examines the comments made by academics, as well as participants in the work of the Commission on this draft convention. Additionally, it scrutinizes the methodology employed by the Commission in reaching this conclusion. Finally, it presents a conceptual analysis of the desirability for the inclusion of these two inchoate crimes, arguing that their inclusion would assist in meeting the policy of preventing crimes against humanity.


Joseph Rikhof
Adjunct Professor, University of Ottawa.
Article

Time to Deliver

Defining a Process Towards the Negotiation of a Convention on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords Sixth Committee, International Law Commission, intergovernmental negotiations, multilateral treaties, treaty-making process
Authors Pablo Arrocha Olabuenaga
AbstractAuthor's information

    In 2019, the International Law Commission (ILC) adopted its articles on the prevention and punishment of crimes against humanity and referred them to the UN General Assembly with the recommendation of adopting a multilateral treaty based on them. The General Assembly’s Sixth Committee was unable to take a decision on this matter and deferred its consideration to 2020. This article focuses on how, in resuming its discussion, the Sixth Committee will have a unique opportunity to define the process towards intergovernmental negotiations. This will close a gap in international criminal law, while generating a new dynamic in its relationship with the ILC on codification, breaking its current cyclical inertia of inaction.


Pablo Arrocha Olabuenaga
Vice-president of the Seventy-fourth Session of the Sixth Committee of the General Assembly, Legal Adviser of the Permanent Mission of Mexico to the United Nations and personal assistant to the ILC’s Special Rapporteur for the topic ‘provisional application of treaties’, Mr. Juan Manuel Gómez-Robledo.
Article

Crimes Against Humanity in the “Western European & Other” Group of States

A Continuing Tradition

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Western Europe and Other Group of States, WEOG, Draft Articles on the Prevention and Punishment of Crimes Against Humanity
Authors Beth Van Schaack
AbstractAuthor's information

    The Western Europe and Other Group of states have a long history with crimes against humanity. They were pivotal in the juridical creation of this concept, in launching prosecutions in both international and national courts, and in formulating the modern definition of the crime. However, some members have expressed concerns around the International Law Commissions Draft Articles on the Prevention and Punishment of Crimes Against Humanity. This article provides a summary of the history of crimes against humanity in the Western Europe and Other Group of states, as well as the current status of crimes against humanity in their legal systems. It argues that although these states have successfully incorporated crimes against humanity into their legal frameworks, it would be beneficial for them to embrace the proposed Crimes Against Humanity Convention.


Beth Van Schaack
Leah Kaplan Visiting Professor of Human Rights, Stanford Law School.
Article

Unlocking the Sixth Committee’s Potential to Act for Crimes Against Humanity as It Did for Genocide

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, General Assembly, International Law Commission, Sixth Committee, United Nations
Authors Michael Imran Kanu
AbstractAuthor's information

    The International Law Commission, on completion of its work on the draft articles on prevention and punishment of crimes against humanity, recommended to the General Assembly the elaboration of a convention by the said Assembly or by an international conference of plenipotentiaries based on the said draft articles. The Sixth Committee of the United Nations General Assembly at the first opportunity only took note of the draft articles and postponed consideration of the recommendation to its next session. The resolution of the General Assembly, as recommended by the Sixth Committee, does not readily disclose the full extent of the debate, proposals and concerns expressed in the Sixth Committee that prevented the General Assembly from acting on the Commission’s recommendation. This article, in considering the cornucopia of views expressed by States, outlines a path to unlock the Sixth Committee’s potential to act, by proposing a separation of the organizational and substantive matters and future-proofing the further consideration of elaborating a convention through the adoption of a structured approach.


Michael Imran Kanu
Michael Imran Kanu is a Doctor of Juridical Science (CEU, Budapest and Vienna), and currently Ambassador and Deputy Permanent Representative for Legal Affairs, Permanent Mission of the Republic of Sierra Leone to the United Nations. michaelimrankanu@gmail.com.
Article

Gender and the ILC’s 2019 Draft Articles on the Prevention and Punishment of Crimes Against Humanity

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords gender, crimes against humanity, international criminal law, Rome Statute
Authors Indira Rosenthal and Valerie Oosterveld
AbstractAuthor's information

    The International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes Against Humanity document is the latest international instrument to address gender-based crimes under international law and the first to do so outside the context of international courts. The elaboration of a treaty on crimes against humanity provides a critical opportunity to affirm that gender-based crimes are among the gravest crimes under international law. This article examines discussions on the meaning of the term ‘gender’ under the ILC’s Draft Articles, with reference to the discussions two decades prior on the definition of ‘gender’ in the Rome Statute of the International Criminal Court, the basis for the Articles’ consideration of sexual and gender-based violence. It then turns to the ILC consultation process, and the 2019 discussion of the ILC’s Draft Articles in the Sixth (Legal) Committee of the United Nations General Assembly on the term ‘gender’. Additionally, it considers a number of concerns raised by States and civil society on the definition of some of the gender-based crimes included in the Draft Articles and concludes by arguing for a comprehensive gender analysis of all of the Draft Articles.


Indira Rosenthal
Indira Rosenthal, Independent Consultant, Gender, Law and Justice; PhD Candidate, Faculty of Law, University of Tasmania (Australia).

Valerie Oosterveld
Valerie Oosterveld, University of Western Ontario Faculty of Law (Canada).
Article

An Analysis of State Reactions to the ILC’s Work on Crimes Against Humanity

A Pattern of Growing Support

Journal African Journal of International Criminal Justice, Issue 2 2020
Keywords crimes against humanity, Sixth Committee, International Law Commission, Draft Articles, International Criminal Court
Authors Leila N. Sadat and Madaline George
AbstractAuthor's information

    The international community has been engaged with the topic of crimes against humanity since the International Law Commission (ILC) began work on it in 2013, with a view to draft articles for a future convention. Between 2013 and 2019, 86 States as well as several entities and subregional groups made comments on the ILC’s work at the United Nations Sixth Committee or through written comments to the ILC. This article is the culmination of the Whitney R. Harris World Law Institute’s work cataloguing and analysing States’ comments by assigning each statement to one of five categories – strong positive, positive, neutral, negative, and strong negative – examining both specific words and the general tenor of the comments. This article analyses the development of States’ reactions to the ILC’s work over time, as well as specific issues that frequently arose, observing that there is a pattern of growing support from States to use the ILC’s Draft Articles on Prevention and Punishment of Crimes Against Humanity as the basis for a new convention.


Leila N. Sadat
Leila Nadya Sadat is the James Carr Professor of International Criminal Law, and Director, Whitney R. Harris World Law Institute, Washington University School of Law. This work could not have been accomplished without the extraordinary efforts of several Harris Institute Fellows, including Fizza Batool, Evelyn Chuang, Tamara Slater, and Kristin Smith and Research Fellows Kate Falconer, Sam Rouse, and Ke (Coco) Xu.

Madaline George
Madaline George, JD, is the Senior Fellow at the Whitney R. Harris World Law Institute at Washington University School of Law.
Article

Investment Arbitration and the Public Interest

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords BIT, ILA, ISDS, unclean hands, regulatory chill
Authors Gábor Hajdu
AbstractAuthor's information

    The study focuses on analyzing conflicts between (international) investment arbitration and the public interest, dividing its contents into five substantive sections. First, it summarizes the common characteristics of international investment arbitration (distinguishing procedural and substantive elements), followed by its most pressing issues (including frequent criticism such as lack of consistency, asymmetrical proceedings, regulatory chill, etc.). Afterwards, selected investment arbitration cases are examined, grouped based on which areas of public interest they affected (environmental protection, employee rights, public health). These cases all hold relevance and offer different insights into the workings of investment arbitration, which serve to illuminate the complex interplay between foreign investor and public interest. The cases also provide the foundation for the study’s conclusions, where key observations are made on the central subjects.


Gábor Hajdu
Gábor Hajdu: PhD student, University of Szeged.
Article

The Temporal Effect and the Continuance in Force of the Treaty of Trianon

A Hundred Years Later

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties
Authors Norbert Tóth
AbstractAuthor's information

    The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination.


Norbert Tóth
Norbert Tóth: associate professor of law, National University of Public Service, Budapest.

Anett Pogácsás
Anett Pogácsás: senior lecturer, Pázmány Péter Catholic University, Budapest; member of the Hungarian Council of Copyright Experts.

András Tóth
András Tóth: professor of law, Károli Gáspár University of the Reformed Church, Budapest; Chairman of the Competition Council, Hungarian Competition Authority.


Enrico Albanesi
Enrico Albanesi is Associate Professor of Constitutional Law, University of Genoa (Italy), and Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. He co-leads (with Jonathan Teasdale) the IALS Law Reform Project. He wrote Sections A and B.

Jonathan Teasdale
Jonathan Teasdale is Associate Research Fellow at the Institute of Advanced Legal Studies (IALS), University of London. He is a barrister (now non-practising) and former lawyer with the Law Commission for England and Wales, and at one time was a local authority chief executive. He co-leads (with Enrico Albanesi) the IALS Law Reform Project. He wrote Sections C and D.
Annual lecture

Access_open The indecent demands of accountability: trauma, marginalisation, and moral agency in youth restorative conferencing

Journal The International Journal of Restorative Justice, Issue 2 2020
Keywords Restorative justice, youth offenders, trauma, marginalisation, offender accountability
Authors William R. Wood
AbstractAuthor's information

    In this article I explore the concept of accountability for young people in youth restorative conferencing. Definitions of accountability in research and programme literature demonstrate significant variation between expectations of young people to admit harms, make amends, address the causes of their offending, and desist from future offending. Such variation is problematic in terms of aligning conferencing goals with accountability expectations. I first draw from research that suggests appeals to normative frameworks such as accountability may not be useful for some young people with significant histories of victimisation, abuse, neglect, and trauma. I then examine problems in accountability for young people that are highly marginalised or ‘redundant’ in terms of systemic exclusion from economic and social forms of capital. These two issues – trauma on the micro level and social marginalisation on the macro level – suggest problems of getting to accountability for some young people. I also argue trauma and social marginalisation present specific problems for thinking about young offenders as ‘moral subjects’ and conferencing as an effective mechanism of moralising social control. I conclude by suggesting a clear distinction between accountability and responsibility is necessary to disentangle the conflation of misdeeds from the acute social, psychological, and developmental needs of some young offenders.


William R. Wood
William R. Wood is a Senior Lecturer, School of Criminology and Criminal Justice, Griffith University, Brisbane, Australia. The manuscript is a revision of the author’s presentation of the Annual Lecture for the International Journal of Restorative Justice, Australian and New Zealand Society of Criminology Conference (ANZSOC), Perth, Australia, 14 December 2019. Contact author: w.wood@griffith.edu.au.

Mary Jo Hebling
Mary Jo Hebling is a Faculty Lecturer at the International Institute for Restorative Practices, Bethlehem, USA. Contact author: maryjohebling@iirp.edu.
Article

The Value of Online Dispute Resolution in Family Law

Journal International Journal of Online Dispute Resolution, Issue 1 2020
Keywords online dispute resolution, family law, access to justice, domestic relations cases, online mediation
Authors Margaret M. Huck
AbstractAuthor's information

    Online dispute resolution is an incredibly powerful tool for litigants, particularly in the area of family law. In the United States, courts with flooded dockets in both metropolitan and rural areas have employed various online systems and software programs to help parties better work through issues. While ODR can provide such benefits as a quicker and less expensive resolution, it also presents some concerns which need addressed by the legal community. For example, many who would otherwise benefit from ODR may struggle with access to the necessary technology, or could greatly benefit from advice on how to phrase opinions in a neutral manner, so as not to derail an emotionally charged discussion. Further, while a history of domestic violence among parties necessitates screening, it is possible that they may be able to utilize ODR if counsel is present. Finally, to promote candor and problem-solving among the parties, all ODR platforms should be as secure as possible.


Margaret M. Huck
Born and raised in southeastern Ohio, Margaret ventured to Columbus to study Psychology at The Ohio State University. She later graduated from The Ohio State University Moritz College of Law in May 2020 with a Certificate in Dispute Resolution. She is passionate about showcasing the benefits alternative dispute resolution can bring to litigants, particularly in the realm of family law.
Research Note

Caretaker Cabinets in Belgium: A New Measurement and Typology

Journal Politics of the Low Countries, Issue Online First 2020
Keywords caretaker government, Belgium, cabinets, political crisis
Authors Régis Dandoy and Lorenzo Terrière
AbstractAuthor's information

    Belgium is probably the world’s best known case of where caretaker governments reside. Yet a clear scholarly definition and measurement of this concept is missing. Based on a detailed analysis of the Belgian federal cabinets, this research note explores the main characteristics and measures the length of the various caretaker periods. We find that Belgium was governed for no less than 1,485 days by a caretaker government between 2007 and 2020, which equals more than four full calendar years. This research note also presents a novel typology of caretaker periods based on the institutional and political practice within the Belgian legislative and executive branches. This typology can be used to assess caretaker periods at other levels of government as well as in other countries in order to improve our understanding of the many ‘faces’ that a caretaker government can take on.


Régis Dandoy
Université Libre de Bruxelles

Lorenzo Terrière
Universiteit Gent
Article

Access_open The Feminisation of Belgian Local Party Politics

Journal Politics of the Low Countries, Issue 2 2020
Keywords local politics, local party branches, local elections, gender quotas, Belgium
Authors Robin Devroe, Silvia Erzeel and Petra Meier
AbstractAuthor's information

    This article investigates the feminisation of local politics. Starting from the observation that the representation of women in local electoral politics lags behind the regional and federal level, and taking into account the relevance of local party branches in the recruitment and selection of candidates for elections, we examine the extent to which there is an ‘internal’ feminisation of local party branches and how this links to the ‘external’ feminisation of local electoral politics. Based on surveys among local party chairs, the article maps patterns of feminisation over time and across parties, investigates problems local branches encounter in the recruitment of candidates for local elections, and analyses the (attitudes towards the) measures taken to further the integration of women in local electoral politics. We conclude that internal and external feminisation do not always go hand in hand and that local politics continues to be a male-dominated political biotope.


Robin Devroe
Robin Devroe is a postdoctoral researcher in the Department of Political Sciences of Ghent University and member of the research group GASPAR. Her main research interest is the study of the political representation of diverse social groups and voting behaviour, with a specific focus on the descriptive representation of women, and she has a fascination for experimental methods. Her doctoral work (2019, Ghent University) focused on the prevalence of political gender stereotypes among Flemish voters. In the past, Robin was a visiting scholar at Texas A&M University (2018, US). Since 2020, she has been co-convenor of the European Consortium for Political Research’s (ECPR’s) Group on Gender and Politics.

Silvia Erzeel
Silvia Erzeel is Assistant Professor at the Department of Political Science, Vrije Universiteit Brussel. Her research interests include party politics, political representation, gender and intersectionality, and comparative politics. Her current research focuses on three main areas: the integration of gender equality in political parties, intersectionality and political representation in Europe, and the consequences of economic and social inequality for representative democracy. Since 2018, she has been co-convenor of the European Consortium for Political Research’s (ECPR’s) Standing Group on Gender and Politics.

Petra Meier
Petra Meier is Professor of Politics at the Faculty of Social Sciences, University of Antwerp. Her research focuses on the (re)presentation of gender+ in politics and policies. Late work focused on the conceptualisation of symbolic representation, how it operates and the issues at stake from an inclusive perspective. Recently, she turned to study democratic deficits in federal systems, especially Belgium, and processes of de-democratisation in general. She is particularly interested in understanding how such processes affect the demos, more particularly from a gender, an LGBTQI or an ethnic perspective, and what dynamics of marginalisation and exclusion they generate.
Article

Social Impact Assessment and Mediation

Journal Corporate Mediation Journal, Issue 1 2020
Keywords Social impact, Business to Community mediation
Authors Eelco De Groot
AbstractAuthor's information

    A Social Impact Assessment is often a formal requirement to determine and prevent social risks at greenfield development of complex infrastructural projects. This article discusses the background and building blocks with the different tiers of Business to Community mediation; a neutral, facilitated, dialogue and information sharing, negotiation, joint fact-finding and formal mediation.


Eelco De Groot
Eelco de Groot is an advisor at Social License and senior lecturer Social Risk Management at the TU Delft.
Article

Re-examining the Relationship between Parliament and the Law Reform Commissions

An Australian Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform commissions, legislative process, parliamentary scrutiny, Australia
Authors Jacinta Dharmananda
AbstractAuthor's information

    In Australia, statutory law reform commissions answer to parliament, albeit through a senior government minister. But once the commission has fulfilled its obligations to parliament, what are the obligations of parliament to scrutinize, or even to consider, the commission’s recommendations? Further, what are its obligations in relation to proposed legislation that contains law reform proposals? This article addresses those questions in an Australian context, with a focus on the generalist law reform commissions.


Jacinta Dharmananda
Senior Lecturer, Law School, University of Western Australia; PhD Candidate, College of Law, Australian National University. The research reflected in this article is supported by an Australian Government Research Training Program (RTP) Scholarship. ORCID ID 0000-0001-5163-3340
Title

Parliamentary Follow-up of Law Commission Bills

An Irish Perspective

Journal European Journal of Law Reform, Issue 2 2020
Keywords law reform, legislation, Ireland, drafting, parliament
Authors Ciarán Burke
AbstractAuthor's information

    This article seeks to present a brief outline of the various means through which the draft bills and recommendations drafted by the Law Reform Commission of Ireland and published in its reports are followed up by the Irish Parliament, the Oireachtas. The Commission’s position within the Irish legislative architecture is explained, as is the process through which bills become laws in Ireland. The Commission, it is noted, occupies an unusual role. Although there is no requirement for its publications to result in legislation, ultimately the lion’s share of its output is followed up on in the legislative process in one form or another, with its publications attracting the attention of both the government and opposition parties. The challenges and advantages presented by operating within a small jurisdiction are also outlined, while some thoughts are offered on the Commission’s future.


Ciarán Burke
Professor of International Law, Friedrich Schiller Universität, Jena, and former Director of Research at the Law Reform Commission of Ireland. The author would like to thank Alexandra Molitorisovà for her help in preparing this article.
Article

Access_open Safeguarding the Dynamic Legal Position of Children: A Matter of Age Limits?

Reflections on the Fundamental Principles and Practical Application of Age Limits in Light of International Children’s Rights Law

Journal Erasmus Law Review, Issue 1 2020
Keywords age limits, dynamic legal position, children’s rights, maturity, evolving capacities
Authors Stephanie Rap, Eva Schmidt and Ton Liefaard
AbstractAuthor's information

    In this article a critical reflection upon age limits applied in the law is provided, in light of the tension that exists in international children’s rights law between the protection of children and the recognition of their evolving autonomy. The main research question that will be addressed is to what extent the use of (certain) age limits is justified under international children’s rights law. The complexity of applying open norms and theoretically underdeveloped concepts as laid down in the UN Convention on the Rights of the Child, related to the development and evolving capacities of children as rights holders, will be demonstrated. The UN Committee on the Rights of the Child struggles to provide comprehensive guidance to states regarding the manner in which the dynamic legal position of children should be applied in practice. The inconsistent application of age limits that govern the involvement of children in judicial procedures provides states leeway in granting children autonomy, potentially leading to the establishment of age limits based on inappropriate – practically, politically or ideologically motivated – grounds.


Stephanie Rap
Stephanie Rap is assistant professor in children’s rights at the Department of Child Law, Leiden Law School, the Netherlands.

Eva Schmidt
Eva Schmidt is PhD candidate at the Department of Child Law, Leiden Law School, the Netherlands.

Ton Liefaard
Ton Liefaard is Vice-Dean of Leiden Law School and holds the UNICEF Chair in Children’s Rights at Leiden University, Leiden Law School, the Netherlands.
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