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Published by the International Criminal Court Student Network (ICCSN) ISSUES in INTERNATIONAL CRIMINAL JUSTICE Published by the International Criminal Court Student Network (ICCSN) ISSUES IN INTERNATIONAL CRIMINAL JUSTICE © 2008 – International Criminal Court Student Network. All rights reserved. “Issues in International Criminal Justice” and the International Criminal Court Student Network do not endorse nor bear responsibility for the content of the articles contained within this publication. The views expressed in the articles and essays included are the opinions of the authors alone. Footnotes appear at the bottom of each page when necessary. No part of this publication may be reproduced in any form without permission from the ICCSN. Please contact the ICCSN for any additional information. For more information and submission guidelines, please visit: www.iccsn.com 2 VOLUME I | NUMBER I | 2008 Issues in International Criminal Justice Kora Andrieu, Editor-in-Chief Kora holds an MA in Political & Moral Philosophy from the Sorbonne University in Paris, where she is in her second year of a PhD program studying under Professor Alain Renaut. She is concurrently working towards an MSc in International Relations at The London School of Economics & Political Science, focusing on reconciliation processes in post-conflict societies. She has studied at New York University and has previously lectured in the Philosophy Department at the Sorbonne University in Paris. Isabel Ann Pierce Carty, Assistant Editor Isabel holds an MA in International Relations from the University of St. Andrews in Scotland. She is currently working towards her MSc in Human Rights at The London School of Economics & Political Science. She is originally from Brookline, MA in the United States. Andrew Sanger, Assistant Editor Andrew holds a BA in Law from Selwyn College, Cambridge University. He is currently working towards his LLM in Public International Law at The London School of Economics & Political Science. While at Cambridge, Andrew served as a research assistant and published in the Cambridge Student Law Review. He has worked with The Bar Human Rights Committee and Lawyers for Palestinian Human Rights. Derek William Vallès, Assistant Editor Derek is a graduate of The Gallatin School of Individualized Study at New York University where he concentrated on American Studies in Philosophy, Politics & Economics. He is currently working towards his MSc in Political Theory at The London School of Economics & Political Science. He is a Fellow of the American Institute for Economic Research and the People for the American Way Foundation, and has also lectured as an Instructor in Constitutional Law at NYU School of Law's HSLI program. He is originally from Hanover, MA in the United States. 3 ISSUES IN INTERNATIONAL CRIMINAL JUSTICE 4 VOLUME I | NUMBER I | 2008 Contents Foreword ........................................................................ 8 Luis Moreno-Ocampo Introduction............................................................................. 10 Editor’s Note ..................................................................10 Kora Andrieu The Meaning of Anniversaries ..............................................12 Derek William Vallès Articles...................................................................................... 14 The International Criminal Court at a Crossroads ......................14 Judy Fu Political Safeguards in the International Criminal Court ...............20 Gustavo Arosemena When Justice Meets Peace: Reassessing the Relationship Between the ICC and the Security Council...............................24 Matthias Vanhullebusch Mind the Gap: UK Law on Genocide, War Crimes and Crimes Against Humanity, and Prospective Jurisdiction of the ICC...........59 Tara O’Leary Torture: The Myth of Universal Jurisdiction and its Failure to Provide Justice for Victims ..................................................72 Anagha Joshi Universal Jurisdiction: A Voice for Palestinian Rights?.................76 Andrew Sanger The Cambodian Genocide: An Issue of Definition ......................91 Kora Andrieu 5 ISSUES IN INTERNATIONAL CRIMINAL JUSTICE Commentary ............................................................................. 97 Situation in the Democratic Republic of Congo .........................97 INTERVIEW: Human Rights Activists on Sexual Violence, the ICC and Resource Exploitation.................97 Caroline Wojtylak Situation in Uganda ......................................................... 106 Wanted: Kony, Joseph .......................................... 106 Sylvia Heer BOOK REVIEW: Purify and Destroy...................................... 110 Kora Andrieu BOOK REVIEW: Peace and Justice........................................ 113 Kora Andrieu Epilogue...................................................................................119 The International Criminal Court Student Network: Past, Present & Future ..................................................... 119 Caroline Wojtylak & Judy Fu 6 VOLUME I | NUMBER I | 2008 The hope of ‘never again’ became the reality of again and again. – Judge Richard Goldstone I was not at all certain whether I had any advocates… Yet if it were not a law court, why was I searching for an advocate here? Because I was searching for an advocate everywhere; he is needed everywhere, if anything less in court than elsewhere, for a court, one assumes, passes judgment according to the law. – Franz Kafka 7 ISSUES IN INTERNATIONAL CRIMINAL JUSTICE Foreword LUIS MORENO-OCAMPO* I AM PLEASED to welcome the creation of this journal, based on the contributions of students from around the world who are interested in the implementation of the Rome Statute. This journal’s creation reflects a 21st century challenge: How to establish global governance without a global government? Legal scholars are still mostly focused on how the law works at the national level, and are not yet fully engaged with the problem of how to integrate nation states within a truly global legal system. The Rome Statute is an example of a new paradigm designed to deal with this problem. It creates a global criminal justice system based on nation states committing to apply a common framework for “the most serious crimes of concern to the international community.” They have accepted that it is their obligation to end impunity for crimes of genocide, crimes against humanity and war crimes in their own territory and to support a permanent and independent International Criminal Court whenever and wherever it decides to act. The Court selects situations to investigate based on legal criteria—not on political convenience. The States must ensure respect for and enforcement of the Court’s decisions. It is a new legal model. The students of today can play a role in developing the new legal and institutional analyses that are demanded by this new system. This is a generation that was born global. They see the problems inherent in the 20th century system and are eager to drive the changes necessary in the 21st century. The ICCSN could be at the forefront of a new understanding, across a * Prosecutor of the International Criminal Court (2003 – Present). Graduate of the University of Buenos Aires Law School. Former visiting professor at Stanford University and Harvard University. 8 VOLUME I | NUMBER I | 2008 range of disciplines, on how the law impacts societies all over the world. The law is not just for the Courtroom; it is for the global society in which we reside. It must be respected by heads of state, rebel leaders and diplomats alike. Students and young professionals understand these new realities. My Office has to make daily decisions on the challenging legal issues that this new reality brings. Presenting these challenges to those connected with the ICCSN, and fostering a discussion among young scholars about the road ahead is important to us. The decade to come will see a shift in our legal thinking and this journal provides a forum for such new ideas. I congratulate the ICCSN on their efforts to date and look forward to seeing their reach grow in the years to come. 9 ISSUES IN INTERNATIONAL CRIMINAL JUSTICE Editor’s Note KORA ANDRIEU* “The struggle of man against power is the struggle of memory against forgetting.” – Milan Kundera† THIS YEAR WE CELEBRATE the tenth anniversary of the Rome Treaty, which led to the establishment of the International Criminal Court in 1998, the first permanent and potentially worldwide system of international criminal justice that aims to protect every world citizen from the horrors of war, genocide and crimes against humanity. For the first time in history, we have an institution that attempts to resolve conflict and find peace through law. Impunity for mass atrocities is no longer acceptable. The objective, in the long term, is that criminal justice will act as a deterrent for perpetrators of crime across the world. This is not an easy task, and, while celebrating the advancement of international criminal justice during the last ten years, we should bear in mind the immensity of the task that lies ahead. The main philosophical assertion of the International Criminal Court (ICC) is that there is no peace without justice, and that the argument against impunity as a potential deterrent for the peace process is mere hypocrisy. This would certainly be true, but for the effectiveness of the objective itself, it is important that we do not limit ourselves to a purely retributive conception of justice, and see in the ICC a miracle solution for conflicts throughout the world. It is hugely important that Ali Kusheyb
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