Leila Nadya Sadat

Avoiding the Creation of a Gender Ghetto in International Criminal Law

This article examines the harm suffered by women and girls in armed conflict and questions the role female lawyers and academics can play in order to best be of assistance. Specifically, the article addresses the problem that when women lawyers work only on gender issues, they find themselves in an all-female ghetto, excluding, or being excluded by, their male colleagues and brothers. Conversely, if women lawyers do not focus on atrocity crimes against women, the question arises of whether anyone will ensure these crimes receive attention. The article argues that by maintaining the treatment of gender crimes and crimes of sexual violence, and by ensuring adequate female representation in the various fields and institutions of international – and national – justice, these issues may be adequately addressed.

Transnational Judicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity

The Rwandan genocide remains one of the most horrific atrocities of the Twentieth Century, resulting in the death of an estimated 500-800,000 human beings, massacred over a one hundred day period. In the fourteen years since the genocide, attempts at justice and reconciliation in Rwanda have involved a delicate interplay between national legal systems and the international legal order. This article examines three fora in which Rwandans have been tried for involvement in the genocide: the International Criminal Tribunal for Rwanda, Rwandan courts including Gacaca Tribunals, and French attempts to exercise universal jurisdiction. Using Rwanda as a case study, the article illustrates the issues, concerns, and difficulties that arise when multiple jurisdictions assert a right to exercise criminal jurisdiction over the perpetrators of serious atrocity crimes. Beginning with a discussion of the political context, this article considers what the competing narratives and litigation in various fora have meant for the project of international and transnational criminal justice. Cases involving the commission of atrocities pose unique challenges for the international legal order. As the normative structure of international criminal law has arguably been strengthened, political constraints increasingly come to the fore. As illustrated in Rwanda, universal jurisdiction or other bases of jurisdiction may remain necessary vehicles for justice and reconciliation, or, at the very least, they may serve as catalyst for change in Rwanda itself.

Seeking Accountability for the Unlawful Use of Force

Debates about the definitions of aggression are responses to deadlock and harbingers of change. Each, in its own way and in its own time, has heralded a transition from an old to a new set of legal and institutional arrangements. The definitions in the early 1930s, which emerged in response to the failings of the League of Nations, signaled the shift away from the old dichotomy of belligerency and neutrality, and towards a new regime based on legitimate and illegitimate wars. The definitions of the early 1950s, responding to the Cold War Security Council deadlock, signaled the UN’s transition from collective security organization to conflict mediator. The General Assembly’s definition of 1974, negotiated during the era of detente, might, had the ‘new’ Cold War not intervened, have heralded new alignments between the powerful states. And the definition in the 2010 Kampala Amendment, anticipating shifts from a unipolar to a multipolar world, proposes dual sources of authority — the Security Council and International Criminal Court — on the handling of aggression.Although debates about definitions herald change, they have also given rise to remarkably durable patterns of state behaviour: patterns still being repeated to this day. The most consistent advocates of automatic determinants of aggression have been states vulnerable to attack or excluded from either the League or Security Council. These ‘excluded’ states have not only looked to definitions for legal protection against the vicissitudes of international life, but have also tried to use them to break the powerful states’ monopoly over the determination of aggression. This pattern was first discernible during the interwar years. In 1933, for example, the Soviet Union (a vulnerable state), backed by France (another vulnerable state), broached a definition at the Disarmament Conference. During the Cold War decades, smaller states, beguiled by the prospect of undermining the Security Council’s mandate under Article 39, kept the definitional flame alight. And today a legion of small, middling, and quite large ‘excluded’ states posit International Criminal Court jurisdiction over ‘the crime of aggression’ as an alternative (or, more diplomatically, a supplement) to Security Council determination.By contrast, the most powerful states, as the ‘included’ members of the League or Security Council, have been consistently inconsistent in their approach to definitions of aggression, and oscillate according to the forcefields of other powerful states. They do not want to surrender their own control over decisions about aggression, but for limited and expedient ends — say, to exert pressure on another powerful state — they are sometimes prepared to initiate or support definitions. The past master of this was the Soviet Union, which was happy to pose as either upholder of Security Council prerogatives or champion of the ‘excluded’ majority, depending on whether it was voting for or vetoing Council resolutions. Alongside the Russians, the most consistently inconsistent of them all has been the United States, which proposed a definition in 1933, opposed a definition at the 1945 San Francisco Conference, proposed a definition at the 1945 London Conference, opposed a definition at the First Committee in 1950, proposed a definition at the UN Special Committee in 1969, and opposed a definition at the 1998 Rome Conference.With these recurring motifs in mind, we will examine three pivotal moments in the evolution of definitions of aggression — 1933, 1950, and 1974 — and will, in their light, conclude with an assessment of the latest definition proposed at Kampala in 2010.

Whither human rights in the era of Trump

This essay catalogs some of the early actions of the Trump administration in an attempt to discern its approach to human rights. It concludes that human rights are not likely either to be a priority of the administration, and, indeed, the administration may be supporting human rights violators and violations through its actions. It observes the parallels between the current U.S. administration and 1930s Germany. Rather than despair, the essay proposes positive, lawful and peaceful responses by countries, individuals and NGOs in order to maintain in place the liberal post-World War II international order.

Seven Canons of ICC Treaty Interpretation: Making Sense of Article 25's Rorschach Blot

This article draws on well-established understandings of international treaty interpretation and the role of the judicial function to propose seven canons of International Criminal Court treaty construction that may serve as the basis of a principled interpretation of the Rome Statute. This interpretative framework is then applied to the seemingly intractable debate within the Court and among scholars over the correct interpretation of Article 25, on modes of liability. The seven canons provide guidelines that may enable the ‘Rorschach blot’ of Article 25, capable of so many divergent interpretations, to become uniformly and consistently understood and interpreted.