The Experts below are selected from a list of 360 Experts worldwide ranked by ideXlab platform
Wui Ling Cheah - One of the best experts on this subject based on the ideXlab platform.
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the curious case of singapore s bia desertion trials War Crimes projects of empire and the rule of law
European Journal of International Law, 2017Co-Authors: Wui Ling CheahAbstract:This article studies a set of War Crimes trials that dealt with the contentious issue of deserting British Indian Army soldiers and were conducted by the British colonial authorities in post-Second World War Singapore (BIA desertion trials). Though the British intended for these trials to facilitate the return of British colonial rule, these trials resulted in to unexpected acquittals and non-confirmation of sentences. While seemingly obscure, these trials illuminate important lessons about rule of law dynamics in War Crimes trials. By applying British military law as a ‘back-up’ source of law when prosecuting “violations of the laws and usages of War”, these trials contravened the rule of law by retrospectively subjecting the Japanese defence to unfamiliar legal standards. However, by binding themselves to a pre-existing and relatively clear source of law, the British were constrained by the rule of law even as this empowered the Japanese defence. This article’s findings also speak to broader debates on the challenges of developing a universally legitimate international criminal law, by provocatively suggesting that, from a rule of law perspective, what is most important in a body of law is its clarity, accessibility, and comprehensiveness rather than its source or its purported ‘universality’.
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dealing with desertion and gaps in international humanitarian law changes of allegiance in the singapore War Crimes trials
Asian Journal of International Law, 2016Co-Authors: Wui Ling CheahAbstract:By studying British Indian Army [BIA] desertions during World War II, and British postWar trial responses, this paper explores the complicated dimensions of desertion and draws attention to the need for a more explicit and comprehensive approach to desertion in international humanitarian law. The paper focuses on less known British trials dealing with desertion, namely, War Crimes trials conducted by the British in Singapore. It examines how these trials dealt with contested interpretations of desertion. Drawing on lessons from these trials, the paper then highlights gaps in today’s international humanitarian law framework, specifically, the need to take into account the realities of desertion, its different permutations, and the difficulties of differentiating between prisoners of War [POWs] and deserters.
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culture and understanding in the singapore War Crimes trials 1946 1948 interpreting arguments of the defence
Social Science Research Network, 2016Co-Authors: Wui Ling CheahAbstract:At least 60 million lay dead at the close of the Second World War (Doyle 2013, p.206). The end of hostilities and bloodshed brought not only relief but also weariness, insecurity, and a desire for justice. The Allied Powers scrambled to reoccupy territories, restore order, and implement War Crimes trials. Apart from the Tokyo and Nuremberg Trials, the Allies would organise hundreds of national trials throughout Asia and Europe. In Asia, the British made Singapore the base of their War Crimes trials programme. Altogether 131 trials were conducted by the British military at different locations across the island. These trials, which I will refer to as the Singapore Trials, brought together diverse participants — judges and prosecutors from the UK, India, and other Allied countries; accused persons from Japan, Korea, and Taiwan; defence counsel from Japan; and witnesses from all over Asia. The majority of defendants in these trials did not deny their involvement in the War Crimes concerned; instead, these defendants argued that their conduct was consistent with Japanese norms, beliefs and practices. How were these culturally influenced arguments of the defence interpreted by other trial participants in the Singapore Trials? This article explores the different interpretations given by trial participants to culturally influenced arguments of the defence. Many of these divergent interpretations stemmed from the cultural distance between trial participants. A number of judges did however modify their understandings after being exposed to similar defence arguments over several trials. Other Japanese participants took advantage of cultural differences and adjusted their arguments in anticipation of how they thought non-Japanese trial participants would react. In other words, while some participants were limited by cultural differences, others used such differences in a strategic manner. The Singapore Trials were thus the site of varying and contested interpretations.Part 2 of this article positions the Singapore Trials against other multicultural trials and scholarly debates about cross-cultural interpretation issues at trial. I then introduce the reader to the historical and legal context of the Singapore Trials in Part 3. In Part 4, I analyse common culturally influenced trial arguments put forWard by the defence and trial participants’ interpretations of defence arguments. I conclude by observing that though defendants were permitted to raise culturally influenced arguments in these trials, due to conflicting interpretations, this did not result in sustained discussion or improved understanding of the defendants’ motivations and conduct.
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culture and understanding in the singapore War Crimes trials 1946 1948 interpreting arguments of the defence
International Journal of Law in Context, 2016Co-Authors: Wui Ling CheahAbstract:After the Second World War, the British military organised 131 War Crimes trials in Singapore, which served as the base for British War Crimes investigations in Asia. These trials brought together diverse participants-judges and counsel from the UK, India, and other Allied countries; accused persons from Japan, Korea, and Taiwan; defence counsel from Japan; and witnesses from all over Asia. The majority of defendants in these trials did not deny their involvement in the War Crimes concerned; instead, these defendants argued that their conduct was consistent with Japanese norms, beliefs and practices. This article explores trial participants' varied and contested interpretations of the culturally influenced arguments put forWard by the defence.
Beth Van Schaack - One of the best experts on this subject based on the ideXlab platform.
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animating the u s War Crimes act
Social Science Research Network, 2021Co-Authors: Beth Van SchaackAbstract:War Crimes are historically conceptualized as falling within two main categories: those concerned with the conduct of hostilities (including breaches of the rules governing the means and methods of Warfare) and those concerned with custodial abuses against protected persons. The latter are commonly assumed to be easier to prosecute because the abuse is unjustifiable and often incontestable, and legal actors are not required to contend with the proverbial fog of War or to gain access to battlefield evidence. Nor do they require finders of fact to calculate whether any incidental harm to civilians was excessive in relation to the concrete and direct military advantage anticipated, as demanded by the intertwined principles of distinction and proportionality. Nonetheless, all War Crimes are challenging to prosecute for a range of reasons, including the technicality of some constitutive elements, the difficulties of amassing sufficient available evidence to meet applicable burdens of proof, the vagaries of unreliable or unavailable witnesses, and the often impenetrable khaki wall of silence. Adding to these ubiquitous challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against War Crimes into its domestic legal frameworks, both military and civilian. This paper, which will contribute to a new volume produced by West Point’s Lieber Institute for Law and Land Warfare, addresses problems with the United States’ domestic War Crimes statute as it appears in Title 18, the federal penal code, that have rendered the War Crimes Act a dead letter since its enactment in 1996. My recommendations for reform are directed at both Congress and the Executive Branch who should, within their respective spheres of competency, work to: (1) better conform the War Crimes Act to U.S. obligations under the 1949 Geneva Conventions and enable the United States to prosecute War Crimes committed anywhere in the world regardless of the nationality of the victim or perpetrator, (2) withdraw and repudiate controversial Office of Legal Counsel (OLC) memoranda advancing a crabbed interpretation of the concept of “protected persons” when it comes to individuals in the custody of a High Contracting Party (HCP) to the Conventions, (3) restructure the statute to obviate the need to undertake a complicated conflict classification exercise, and (4) enact a superior responsibility statute that would apply to War Crimes and other international Crimes within U.S. jurisdiction. To lay a foundation for the analysis of the U.S. War Crimes Act, this chapter sketches the way in which War Crimes find expression in IHL, including in treaties to which the United States is a party and customary international law (CIL). It then provides a quick legislative history of the War Crimes Act of 1996 with references to its advantages and shortfalls. It closes with a set of discrete drafting and policy recommendations to address the latter. Together, these amendments would bring the United States into better compliance with its treaty obligations and the rules adopted and applied by its NATO and other allies. It would likewise enable the United States to prosecute War Crimes—including custodial abuses—committed in all armed conflicts, whether international or non-international, and regardless of the nationality of the accused or victim. Finally, it would signal U.S. intolerance for deliberate harm to individuals who find themselves in the custody of a state to which they are not nationals and ensure that superiors do not escape legal censure when they know, or should have known, that their subordinates are committing, or have committed, abuses and they fail to take the necessary steps to prevent and punish these breaches.
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mapping War Crimes in syria
Social Science Research Network, 2016Co-Authors: Beth Van SchaackAbstract:This paper maps the range of War Crimes being committed in Syria with reference to the applicable treaty and customary international law and prospects for prosecution. It begins by presenting the international legal framework employed to determine when an armed conflict began in Syria, how this conflict is classified under international law, and which multilateral treaties and customary rules are operative. This framework underlies the determination of which War Crimes can be prosecuted, which tribunals might have jurisdiction, and which perpetrators may be made subject to indictment. The paper next focuses on some open legal and factual issues around certain War Crimes that are particularly salient in the Syrian conflict but that have been under-theorized and rarely prosecuted. Along the way, it demonstrates that many of these War Crimes could not be easily prosecuted before the ICC or under any domestic War Crimes statutes that hew closely to the law-of-War treaties given the stark divergence between treaty law and customary international law when it comes to non-international armed conflicts in general and to the prosecutability of War Crimes in such conflicts in particular. These observations offer support for proposals to develop an ad hoc tribunal dedicated to the Syrian conflict, as sketched out in the final section. All told, the paper demonstrates the continued utility of customary international law to ensure that courts can enforce evolutions in the law notwithstanding the tendency of treaties toWard normative ossification.
John Hagan - One of the best experts on this subject based on the ideXlab platform.
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legitimacy of international courts in the aftermath of War Crimes and Crimes against humanity victims evaluations of the icty and local courts in bosnia and herzegovina
Social Science Research Network, 2015Co-Authors: Sanja Kutnjak Ivkovich, John HaganAbstract:This paper presents the results of a 2007 survey of victims of War Crimes and Crimes against humanity from Bosnia and Herzegovina. We study the level of diffuse and specific support for the ICTY among its constituency by exploring the respondents' views about the ICTY and the local courts in Bosnia and Herzegovina, Croatia, and Serbia. Our results show that, whereas the ICTY was the preferred decision-maker for War Crimes and Crimes against humanity of their choice for the majority of the respondents, ethnicity plays a strong role in the perceptions of the ICTY's legitimacy. Compared to Croat and Serb respondents who typically expressed little confidence in the ICTY, the Bosniak/Muslim respondents seemed to show the greatest degree of support for the ICTY, both diffuse and specific. Although the majority of the respondents evaluated the ICTY as fair, the level of support for the ICTY was sharply divided across ethnic lines as well. The respondents' support for the ICTY was related to the evaluations of the ICTY's distributive fairness, procedural fairness, and the perceptions about the judges' (lack of) political independence. The majority of the respondents evaluated only one domestic court - the Court of Bosnia and Herzegovina - as fair.
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the science of human rights War Crimes and humanitarian emergencies
Social Science Research Network, 2008Co-Authors: John Hagan, Heather Schoenfeld, Alberto PalloniAbstract:Sociology can be an important disciplinary bridge between the study of what demographers call forced migration and mortality and what legal sociologists and criminologists understand as War Crimes. The challenge is to develop a critically informed sociological synthesis that joins our understanding of the frequently politicized health and violence dimensions of what are also diplomatically called "complex" humanitarian emergencies. The frequency of these emergencies is growing, and there is an increasing amount of data collected by governmental and nongovernmental organizations exposing large-scale violations of human rights and War Crimes. Yet analyses of these data are often inadequate. Although the humanitarian emergency in Kosovo marked a high point in collaborative human rights research, the circumstances that allowed this collaboration are probably atypical. We consider how, in increasingly challenging circumstances such as the Darfur region of Sudan, population health and legal and criminological surveys can be joined to provide more comprehensive estimates of deaths resulting from violent attacks as well as from disease and starvation. The discipline of sociology, with its expertise in population-based surveys and other measurement and analytic techniques, has the capacity to bridge differences and to provide more meaningfully synthesized conclusions.
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the science of human rights War Crimes and humanitarian emergencies
Review of Sociology, 2006Co-Authors: John Hagan, Heather Schoenfeld, Alberto PalloniAbstract:Sociology can be an important disciplinary bridge between the study of what demographers call forced migration and mortality and what legal sociologists and criminologists understand as War Crimes. The challenge is to develop a critically informed sociological synthesis that joins our understanding of the frequently politicized health and violence dimensions of what are also diplomatically called “complex” humanitarian emergencies. The frequency of these emergencies is growing, and there is an increasing amount of data collected by governmental and nongovernmental organizations exposing large-scale violations of human rights and War Crimes. Yet analyses of these data are often inadequate. Although the humanitarian emergency in Kosovo marked a high point in collaborative human rights research, the circumstances that allowed this collaboration are probably atypical. We consider how, in increasingly challenging circumstances such as the Darfur region of Sudan, population health and legal and criminological s...
Janine Natalya Clark - One of the best experts on this subject based on the ideXlab platform.
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international War Crimes tribunals and the challenge of outreach
International Criminal Law Review, 2009Co-Authors: Janine Natalya ClarkAbstract:A significant challenge facing international War Crimes tribunals is to reach out to and to communicate their work to the local populations concerned. The purpose of this article, therefore, is to analyze and to explore the Outreach programmes of three particular courts, namely the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). It will argue that notwithstanding the important and creative Outreach work being undertaken by these courts, more resources must be invested in their Outreach sections if they are to achieve their ambitious objectives, not least the goal of contributing to peace.
Brian L Cox - One of the best experts on this subject based on the ideXlab platform.
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recklessness intent and War Crimes refining the legal standard and clarifying the role of international criminal tribunals as a source of customary international law
Social Science Research Network, 2020Co-Authors: Brian L CoxAbstract:This Article explores the substantive and procedural aspects of the assertion that recklessness is included on the spectrum of mens rea for War Crimes as a matter of customary international law. The substantive aspect of the inquiry, in Part I, engages in a critical assessment of the assertion that the jurisprudence of international criminal tribunals indicates that recklessness is sufficient to support a War Crimes prosecution in general. The procedural aspect, in Part II, contests the prevailing “principal-agent” construct of describing the relationship between states and international criminal tribunals and the resulting role of tribunals in establishing customary international law. After rejecting the prevailing construct, the Article introduces the “designate and extend” model to clarify the relationship between states and international criminal tribunals. The substantive inquiry in Part I demonstrates that the jurisprudence of international criminal tribunals does indicate that recklessness is included on the mens rea spectrum for War Crimes, but only in specific, limited conditions. The procedural inquiry in Part II, while applying the new designate and extend model, confirms the role of decisions by international criminal tribunals as a subsidiary — rather than primary — source of customary international law. The substantive aspect of the inquiry addresses the specific issue of the spectrum of mens rea for War Crimes in order to refine the existing legal standard, while the procedural aspect adopts a broader approach to clarify the general relationship between states and international criminal tribunals. Both inquires address unsettled issues that are central to the theory and practice of public international law.
