Crimes Against Humanity

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Myanmar: Testing the Democratic Norm in International Law

It is official now: history does repeat itself. In 1990, the military regime in Burma, now Myanmar, held elections. To their surprise, the democratic opposition in the shape of the National League of Democracy (NLD) achieved an overwhelming victory. This happened despite the fact that they had taken the precaution of keeping the leader of the NLD, Daw Aung San Suu Kyi, under house arrest well before and during the elections. Then as now, the military refused to transfer power to the elected representatives. Members of parliament were arrested, tortured and at times killed. Those who managed to evade the dragnet of the military assembled at Mannerplaw in the border region with Thailand and established an opposition government, dedicated to holding in trust the democratic mandate granted by the people of Myanmar. Traditionally, international practice follows the ‘Tinoco Arbitration’ principle of effectiveness in determining who is entitled to represent a state and its people. This means that whoever manages to capture actual power within a state will be taken to be entitled…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo case? (Part 3)

In this three-part series I seek to draw attention to legally-unprecedented and epistemologically-unsound evidentiary standards emerging at the ICC, particularly in the Gbagbo case.  The mainstream reaction to the Gbagbo case has been to accept the narrative that the problem lies entirely with evidence.  However, when the majority derides the “questionable quality of much of the evidence” (§1608),…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 2)

My aim in this three-part series is to start a conversation about unusual and problematic evidentiary standards emerging at the ICC.  These standards flow from a commendable impulse to uphold the highest standards, but they entail an unprecedented and unattainable exactitude. In my view, if these standards take hold, they will result in the repeated crashing of complex…

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The Other Poisoned Chalice: Unprecedented Evidentiary Standards in the Gbagbo Case? (Part 1)

The aim of this post is to start a conversation about unusual evidentiary standards emerging in some judgments at the ICC.  Although the underlying impetus is commendable, these standards pose legally unprecedented and epistemologically unsound demands.  Remarkably, these novel evidentiary approaches, which depart significantly from national and international practice, have not yet triggered much conversation.  As recent cases…

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Five Procedural Takeaways from the ICC’s 18 July 2019 Lubanga Second Reparations Judgment

On 18 July 2019, the International Criminal Court (ICC) Appeals Chamber issued a landmark judgment upholding a USD 10,000,000 collective reparations award for victims in the case against Thomas Lubanga Dyilo. In this second—and hopefully final—Appeals judgment on reparations in the Lubanga case, the Appeals Chamber largely confirmed the methodology that Trial Chamber II…

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