The ICC pre-trial chamber decision on jurisdiction over the situation in Myanmar

The transfer and deportation of ethnically Rohingya people from Myanmar into Bangladesh is a crime against humanity demanding an international response. What role, however, should the International Criminal Court (ICC) play? On 6 September 2018 an ICC Pre-Trial Chamber ruled that the Court has jurisdiction to investigate and prosecute such crimes as they are completed on the territory of a State party, Bangladesh. Myanmar is not a party to ICC Statute and has invoked the principle that treaties do not bind third parties without their consent. The case put in this commentary is that while the Pre-Trial Chamber’s approach to the law was arguable as an interpretation of the ICC Statute, it was unwise as a matter of policy. The argument is threefold. First, the Pre-Trial Chamber’s ruling is as a matter of legal method only the first-move in a process of norm-creation and persuasion. Second, it does not follow that because territorial jurisdiction in international law includes ‘objective’ jurisdiction over transboundary acts completed on a State’s territory that such jurisdiction was delegated by member States to the ICC in all cases. Finally, it is argued that international criminal tribunals do not succeed when the cooperation of necessary territorial governments (here, Myanmar) is withheld. Proceeding in this case risks becoming a quagmire of the ICC’s own creation at a time when it can little afford further risks to its legitimacy.     

The Ríos Montt case and universal jurisdiction

ABSTRACT

This article analyses the inter-relationship of developments in international justice and the prosecution of Efraín Ríos Montt for the crime of genocide in Guatemala. International justice processes, particularly concerning the application of ‘universal jurisdiction’, contributed to the advancement of the case against Ríos Montt, in Spain and Guatemala. In turn, the prosecution of Ríos Montt influenced the interpretation and application of universal jurisdiction, with ramifications beyond the Guatemalan case itself. The article traces the prosecution for genocide of Efraín Ríos Montt in the Spanish National Court, and situates this particular case within broader currents and networks associated with prosecuting grave violations of human rights. The prosecution of Ríos Montt demonstrates that, rather than a simple case of global norms trickling ‘down’ to the (lower) local level, mutually constituted activities of the global and the local continually shape each other. The interconnections of national and transnational processes were key to the prosecution of genocide in Guatemala.     

Social distance in Bosnia‐Herzegovina and the North Caucasus region of Russia: Inter and intra‐ethnic attitudes and identities*

ABSTRACT. This article examines attitudinal differences and similarities among ethnic groups in conflict‐affected societies. Conventional wisdom tells us that societies that have experienced violent struggles in which individuals of different ethnic groups have (been) mobilized against each other are likely to become polarized along ethnic lines. Indeed, both policy‐makers and scholars often assume that such divisions are some of the main challenges that must be overcome to restore peace after war. We comparatively examine this conventional wisdom by mapping dimensions of social distance among 4,000 survey respondents in Bosnia‐Herzegovina and the North Caucasus region of Russia. The surveys were carried out in December 2005. Using multidimensional scaling methods, we do not find patterns of clear attitudinal cleavages among members of different ethnic groups in Bosnia‐Herzegovina. Nor do we find patterns of clear ethnic division in the North Caucasus, although our social distance matrices reveal a difference between Russians and ethnic minority groups.     

Localizing geopolitics: Disaggregating violence and return in conflict regions

Critical geopolitics began as a critique of Cold War geopolitical discourses that imposed homogenizing categories upon diverse regional conflicts and marginalized place-specific structural causes of instability and violence. This critique is still relevant. Implicit within it is the promise of a more geographical geopolitics that, arguably, has not been realized by research. Using Bosnia–Herzegovina as an example, this paper examines the challenges of developing a critical geopolitics grounded in the study of contested geopolitical regions and places. Reviewing anthropological and other place-sensitive studies of violent population displacement and post-war returns in Bosnia–Herzegovina, the paper considers some conceptual dilemmas and questions raised by attempting to create a grounded critical geopolitics.     

清末民初上海公共租界会审公廨法权之变迁(1911～1912)

清末民初,上海公共租界会审公廨法权较之以往发生了重大的变化。《申报》对此作有较为详细的报道,以此为考察材料,通过对法权变化内容的分析和这一过程的动态重构,以期从中透视变乱之际中外权势转移的动态情景,并得以多层面、多视角得认识中国法制近代化的艰辛历程。     

The Right to Mobility: The Production of Mobility in the Courtroom

This paper considers the way mobility has been given meaning by decisions in the United States Supreme Court. It argues that in four key decisions the Court constructed a de facto “right to mobility” by linking mobility to notions of citizenship. The paper suggests that these cases illustrate the importance of considering how mobilities are given meaning in particular contexts and how these meanings are framed within notions of mobility as an essential human freedom. The paper is framed by discussions of mobility, rights and citizenship and concludes with a discussion of the role of othering in the production of mobility‐as‐citizenship.     

Fragmentation and forgetting: Sarajevo’s Vijećnica

In this article I argue that the crisis of common collective heritage in Bosnia and Herzegovina is negatively affecting continued peace building processes in the country through an examination of the reconstruction of Sarajevo’s Austro-Hungarian city hall – the Vije?nica. Without a state-level ministry of culture, heritage that attests to a common cultural past uniting the three major ethno-religious groups in the country has suffered immeasurably, especially in comparison to ethnically specific cultural heritage. After the Second World War, the Vije?nica began to embody shared collective memories through its function as the National and University Library of Bosnia and Herzegovina (Nacionalna i Univerzitetska Biblioteka Bosne i Hercegovine). The building’s destruction during the Siege of Sarajevo cemented its place within the Bosnian psyche as a collective memory institution, but its reconstruction is transforming the discourses surrounding the building and the collective memories it embodies. By investigating the reconstruction process and the post-war separation of the National and University Library from the Vije?nica, I show that common collective heritage matters for peace building, and that in Sarajevo, the decay and neglect of such institutions not only mirror the splintering dynamics of ethno-religious nationalism, but also perpetuate them.     

Making a home in Mostar: heritage and the temporalities of belonging

This paper addresses the feeling of being at home in time and in place through fieldwork carried out in Mostar, Bosnia and Herzegovina from 2015–2016. Such feelings are needed after a war resulting in geographical displacement as occurred during the breakup of Yugoslavia. This paper argues for the need to see beyond only spatial factors for the ‘making of home’, and therefore considers temporal factors through the role of the heritage in forming narratives, which combine temporal and spatial relations. Alternative narratives to those of ethnic separation are taken into consideration, and it is argued that a sole focus on division may further enforce it rather than lead to its reduction. A sense of disassociation to the current city of Mostar and its narratives has led to the construction of narratives of home within a different time-period (pre-war Mostar). In turn, this may cause nostalgia, passivity, and an ‘othering’ of the newcomers to Mostar. However, there are also cases of employing such a narrative actively in order to envision an alternative future beyond ethnic separation. So far, the institutions working with the heritage of Mostar have not addressed these issues, thus possible ways forward are suggested.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.     

Left justified: The early campaign for an international law response to Khmer Rouge crimes

In April 1979, a mission of the International Association of Democratic Lawyers made a solidarity visit to Cambodia in the immediate aftermath of Khmer Rouge rule of the country. One of the mission members, John H. E. Fried, a former advisor to the United States' military trials at Nuremberg, was moved to subsequently advocate for United Nations recognition of the then ostracised Cambodian state. The crisis of post-Khmer Rouge Cambodia, and the political justifications made by early visitors there, illuminate late Cold War cultures of progressive international law scholarship and activism through their constitutive affects and material practices. While legal investigation of Khmer Rouge crimes is now largely understood through the frame of ‘transitional justice’, this paper rejects such a framing. It argues instead for attention to Cambodia's early experiences, in which left legal activism – calling for Nuremberg's lessons to be applied to the violence perpetrated in Vietnam and Cambodia – played an important role. For scholars interested in post-1979 Cambodia, the Tuol Sleng Genocide Museum historical visitor books, recently digitised, promise insight into the multiple actors, motivations and understandings of international ‘early responders’ to evidence of Khmer Rouge crimes.     

Symbolic Violence and the Politics of Environmental Pollution Science: The Case of Coal Ash Pollution in Bosnia and Herzegovina

Abstract: Environmental justice movements often contest environmental knowledge by engaging in scientific debates, which implies accepting the predominance of scientific discourses over alternative forms of knowledge. Using Bourdieu's concept of symbolic violence, this paper warns that the engagement with hegemonic forms of knowledge production may reproduce, rather than challenge, existing social and environmental inequalities. The argument is developed with reference to a case study of coal ash pollution in Tuzla, Bosnia and Herzegovina. The case study shows that the construction of knowledge in a scientific project led to the exclusion of local definitions of the situation and the dismissal of their observations of environmental pollution. The case suggests that the capacity of different actors to put forward their interpretation of an environmental issue depends on the forms of symbolic violence that emerge within hegemonic discourses of the environment.     

European private law and the challenge of plural legal subjectivities

This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment—the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into the private law through national social constitutions like Civil Codes has been far less successful. Abstract legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism.     

Funder and facilitator: Swedish development aid aimed at cultural heritage in Bosnia and Herzegovina 1995–2008

ABSTRACT

The paper investigates the relationship between the Swedish development agency Sida and Cultural Heritage without Borders (CHwB), a facilitating organisation in the field of cultural heritage in Bosnia and Herzegovina (BiH) following the Bosnia War. From 1995 to 2008 CHwB was the only NGO in BiH working to preserve cultural heritage, and was almost exclusively funded by Sida. From having been an organisation focusing on the restoration of historic monuments, CHwB transformed into becoming an NGO facilitating social and economic development. The paper suggests that CHwB gradually changed from having a very particular position of working with the preservation of an ethnically diverse cultural heritage with the aim of promoting reconciliation, to one where it needed to focus on reconstruction and its implications for economic development. By analysing a large number of key documents using Norman Fairclough’s critical discourse analysis this change is interpreted in relation to changes taking place within the landscape of international aid and post-conflict recovery.     

Engendering citizenship: gendered spaces of democracy in South Africa

The dramatic political upheavals and transformations that have occurred throughout the world during the 1990s have served to refocus international attention on theories of citizenship and democracy. Feminist theorists have explored alternative notions of radical and substantive democracy, suggesting that extending democratization depends upon the creation of metaphorical and material spaces for women's effective participation. Related to this is a growing interest among political and feminist geographers in the scales and spaces of citizenship. Drawing upon these theoretical contexts, this paper explores how transformations in South Africa present opportunities for reworking understandings of democratization and citizenship. The paper places gender and citizenship in South Africa within international feminist debates, and explores the sequence of events through which gender issues came to prominence in South Africa during the transition to democracy. The ways in which political rights are mediated by informal structures, and the effects of this on women, are analysed. The paper concludes by discussing the ways in which the construction and contestation of citizenship in South Africa might inform broader international feminist debates.     

Realizing citizenship in property: Houseless encampments and the limits of liberalism's promise

This paper argues that geographers ought to pay closer attention to the role of property relations within political liberalism. Developing on the idea that propertied-citizenship excludes houseless or other property-insecure people from space, the paper argues that property-insecure people are instead incorporated within the relations of property. Examining how houseless people are incorporated within rather than outside of property, illustrates how key values of property long-held in liberalism are maintained and used to devalue a sense of social and political autonomy for the property-insecure. After tracing the dialectical relations of property with citizenship through the historical emergence of American liberalism, the paper examines how the values connecting property with citizenship continue to diminish the livelihoods of houseless people. Based on ethnographic research with self-governed houseless encampments in Portland, Oregon, I analyze how opposition to these unique types of houseless shelter affect encampment residents. What we are able to see from Portland's encampments, I argue, are the broader limitations of citizenship within liberalism which continue to be demarcated through a proper social order defined by property.     

Ajvatovica: A Bridge Between Tradition and National and Religious Identity

The religious/cultural event Ajvatovica, the most attended Muslim gathering in Europe, provides a vivid example of the “cooperation” that exists between the nation and religion in contemporary Bosnia and Herzegovina (BiH). Although officially a religious event, it has a special place in the ambiguous nation-building project of BiH, relating specifically to the nation-building process of Bosniaks. In this paper, I will address this religious event in its historical and social context, and point to its significance and symbolism. I will pay particular attention to the attitudes of the socialist authorities towards this event, the motives behind its revival and its context, and the modifications made to it during the 1990s, which were closely related to the social and political changes taking place in BiH.     

The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

Exile in a Land of Exiles: The Early History of Criminal Transportation Law in New South Wales, 1788–1809

This article considers the peculiar application of English criminal transportation law in the ‘convict colony’ of New South Wales during its foundation years. It demonstrates, first, that transportation was not intended to be within the sentencing jurisdiction of the New South Wales Court, but that it was adopted and practised nonetheless, with confused and incongruous results. In particular, substantial challenges emerged in applying colonial or local sentences to a population that was largely already under sentence of transportation. The result was a raft of innovations and inconsistencies that highlighted the legal and practical problems of performing exile in a land of exiles.     

The Future of International Criminal Evidence in New Wars? The Evolution of the Commission for International Justice and Accountability (CIJA)

This article explores the intellectual formation of the Commission for International Justice and Accountability (CIJA). It illuminates how the development of the CIJA was an attempt by state and non-state actors to affect the course of international criminal justice in Syria and Iraq. First, this article argues that the CIJA was the result of four factors: the UK Foreign Office’s desire to support human rights activists in Syria; lessons learned from previous international criminal tribunals; attempts by non-state legal practitioners to invent new ways to overcome the gaps and limitations of the international criminal justice system; and the willingness of Syrian civil society to risk their lives and use the law to hold those responsible for mass atrocities to account. Second, the article argues that as non-state actors with a focus on evidence management, the CIJA may represent an innovative approach to investigating mass atrocities, particularly for activists and civil society actors who wish to play a role in evidence management in new wars. Lastly, it shows how the CIJA may work in parallel with international mechanisms, such as the International Criminal Court (ICC) and other inter-state actors, to collect evidence of war crimes, crimes against humanity, and genocide in new wars, particularly when the ICC is unable to do so. This study combines qualitative research with empirical analysis and draws on a range of primary and secondary sources, including a number of interviews conducted with CIJA personnel, former ICC practitioners, and other practitioners in international criminal law.