Potential and peril : incapacitation in the new age of international criminal law
University of British Columbia
Master of Laws - LLM
International criminal law (and in particular the permanent ICC) is experiencing the new and unique context of operation within ongoing contexts. In an attempt to clarify our intentions and purposes in the orchestration of international tribunals, this thesis confronts the role of incapacitation in such a context. This leads to a new interpretation of justice in both the international, as well as the domestic, criminal law spheres. The thesis methodology comprises of a theoretical consideration of jurisprudential theories of domestic and international criminal law theories (predominantly incapacitation, but also deterrence, retribution, rehabilitation, reparation, and restitution), including a comprehension of the deontological/consequentialist discourse. It subsequently explores case-studies of three chosen situations in which international criminal law has operated. These contexts and examined individuals are : the ‘Butchers of Bosnia’ (Radovan Karadžić and Ratko Mladić) in context of the former Yugoslavia; Joseph Kony and the LRA in Northern Uganda; and President Al Bashir in Sudan’s Darfur region. These studies encompass a historical, social, political, and legal perspective of the context and perpetrated crimes. Results of the explorations and theoretical discoveries within this paper lead to a new, expanded concept of incapacitation that brings light to both international and domestic criminal legal theory. Law is portrayed as a carefully wielded weapon which may render culpable, powerful war criminals toothless and alone. ‘Incapacitation’ so called becomes a broader and substantially different concept. This contains a new distinction between ‘direct’ and ‘indirect’ incapacitation – the latter referring to the possibility of law to impact on the actions of the accused before incarceration, for instance by restraining personal liberty, political power, freedom of movement, and overall legitimacy. Recommendations for how this newly defined power can be harnessed by international criminal institutions and actors are explored. There is also a reflection on the potential negative outcomes of international criminal law, which must be taken seriously if the ultimate objective of the law is indeed consequential.
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